CF0000059562 @ivisicn Bench {Crim’rmk 1 IN THE Eil‘CrH CQUHT OF JUD .TCA‘TUEiEi AT JA’xLPUR VLF. CRKivimAL A9PLgAL NQI’kE‘] OF 1998. APEAL UNDER aaCTION 574ml) OF Cr.E.C. iPPgLLANI z ( IN JAxL ) amRA Dag RMAG, / N Son o£ Ramlal Narang, aged ahout 5O year reSident of village — Beltukuri, P.S-Kharora District Raipur (‘34.P.) . X121 U: r /z ’fé’ .w.§..-u4-"w Q m } h; Skpa,‘:$,.kKMZf¢:ml§.M£4/ -V9I‘SU.S- u m .. M RRAR. www'" JM 3 REE}? O NDAI; NT t yd S Thi 3E OF lViL‘IDHYA PRADEQ$H . . CON V 1C TION 31:; MEL: NCE u/s 302 1.P.c. Life Imprisonment + 1000/-fix9 indefault of. fine H.I. for 6 months . / g B s ‘ ® b V" ‘ ; , UF €HEATTESG$RE {KT EILéwrmv; Ca-iminai Agmaai Eitmn 363?] lgwsg neera Eaa: Eiamng .\\ .\\ VS. State @f Matihya Fméwh {ygw ghhgwaeuwm nm~~.~§m u: swam: i 011% ri Fakhrutiérin ami ri V.K.Shriva5tava9$& ijwegeéé‘: K11. SangEeta Mishra, ceuns€1 for the. appeliant. 51111 U'.N.S‘. Deo, Govt. Advocate/Aiic‘ii. Public Prosacutor with Shn' Akhil Miahm, Pmwl I mm, Pr, for ths State. A .- JUD ‘§ an El E .1. Per F‘Qkhmirmm .TV HEaiH Earned counsel for thE pamiw. z. The appsliant has prafarmd thiS appeal against the judgmcint Ciatad 5-1G—1998 daiiVEred 1'11 Sessions Trial 10.500/‘97 by thc— Acidmcnal S€SSions Judg€ (Special Judgs N.D.P.S.) Raipur whereby he has; beeh convicted under Section 302 of fhe Indiajl Penal Code for committing murder of his; Wife. Sonvati in the night of 20th dune 1997 in VIL‘iage Belmkari, RS. Kharora and sentenced to undergo implisonment for iife and a fme of Rs, LGDOf —, in default of pavment of fme to further undergo 1igorous imprieonment for six months, 3: . appellant. 111 the intervening night of 20m and 21“ June, 1997, Q: deceased. Sonvati ahd the appellant were in one room and the eon of deceased Yogesh Narang (PW. 1) and his wife Punni Bai (RW. 9) aiong “71m their chiidren were sieeping in the adioming room of the houee. \ \ iiouse of brother of the accused PW. 2 Sondas is adjoining to the house lineny sTated the prosecu‘fion stow is that Sonvati was Wife of the ‘\ [J 0f 1116 accused. At about '2 a‘m. Ycgesh Narang (RWI) ileanl Um scmam of his moxher. He woke up and Saw mat nis fatner accuSmL Heer‘adas Was bgau'ng Sonvaii 13V Tangia and Sim was crving for i161}; When Yogesh Narang (“P.W. l) tried to stop the accu36é, accusrad asked him: that if he wouid not go, he will Km 111m 2:130. Upon rmS, Yogesn \ Naming (PW. 1) went inside his room and calied his node Sondas (PW: ‘2) emd informed him about the moment. ’I‘nerealter Yogesn Narang {P‘WT 1‘) aiong with ms Wife and c11i1d1‘en. went to the house of his uncie $olld.§s‘iP.W. '2'} and then went to 'V'mage Kotwar Him Das (RWV), Patel Hariram (PW. 3), Najndas (PW. 4) and Babuiai (PW. 5) and other § viilagers and inforined them about the incident, A11 theSe persons came and since the from door was (nosed Irom msme, they entered mto the house of accused from the house of Sondas (PW. ’2). They saw that door of the room of the accused was opened and blood was found spread in and out side the room and Sonvati was Ewing drenched with blood in the cot and the accused was also 1'11 the cot. 4. Yogesh Narang (RW. l) could not lodge. the report 1n the mght due. to rain and in the morning at 6.10 AM. he went to Police Station Kharora which is 7.00 km. awav from Vdlage Beltukarl and informed $111) inspector Albert Kujur (PW. 13) that his father has killed his mother bv use of Tangia. He lodged First Infomation Report as per EX. P—l, on the basis of which an offence under Section 362 of LHQ. was ' registered. Investigating Officer Albert Kujur (PW. l3) then came to spot and prepared Panchnania. He recorded statements of Hariram (PW. ‘3), Ci \Iaindas (PW. 4), Babulal, Kotwar Hirudas (PW. '7') and Funni bai (PW. Q). The body was sent to Primary Health Centre, hharora ior \\\ postmortem, Where Dr. Verma (PW. 8) found multiple injuries on the ‘ bodv of the deceased. Thereafter, challan was filed and charges were. \ L:L framued against the accus€d. The accused abjured the guilt a11d contended that he has been faisely implicated. The iealned trial Court after considen'ng the evidence and material on record held the accused guuty for the offence‘punishable under Section 802 of LPC. and eente‘nceu him as above. l 5. 1 hu Sangeeta Mishra, learned counsel for the appellant, assailed. the fmdings recorded by the learned Court below interalia on the ground that Yogesh Narang (RW. l) and Punni Bai (RW. 9) are hostile ‘ u Witnesses and the learned trial Court committed illegalitv in relving upon them. She further contended that report of Serologist has not been filed. She also contended that blood found on the body of the deceased has not been confirmed. .- emnwo io 6. Learned State Counsel on the other hand supported the judgment and the finding of the trial court. '/. We nave gone through the record minutely. The prosecution t examined 14 Witnesses, namely, Yogesh Narang (P."W'.l), Sondas (HWJZ), Hariram (El/V3), Naindas (Pill/'4), Babulal (PWS), Chandra humar (F.W.6), Hirudas (F.W.7), Dr. DR. Verma (P.W.8}, Punni Bai {Ell/‘9), Anil Kumar Sahu (PW. 10), Teksingh Rajpoot (P.W.ll), Jaganlal (mix/‘42), Aibert Kujur (P.w.13) a Hoikax Smgh Thakur (Ru/.14). We have read the evidence of Yogesh Narang (P.W.l). He has categorically stated that he along with his Wife Punni Bai was sleeping in one room and accused Heera Das and his mother were sleeping in another room of the house. House of his uncle Sondas is adjacent to his house. In the \ mid night, he heard the scream of his mother Sonvati. Upon this, he woke up and came out. Scream of his mother was coming from the room Where his father and mother were there. The door was Closed. He “ tnea to get opeued the door but it couid not b6 0p€11€d. He went to the house 01 his uncle Sonaas jumping the wali and called Kotwar Hiruclas, Devkaran, Babulal, Hariram, Naindas arld Daulal. He and ms uncle along‘wim other person$ entered in the house. l-le saw that his father Heera‘das and mother Sonvati were 1'11 the room on the same cot. ; l Thereafter, this witness was declared hostile. 8. Snnuar is the version of Pufmi Bai (PW. 9] who is daughter—in- law of accused. She has stated in para 2 that in the night she was “F .. awakened hv her husband. She went to house of Sondas as his husbantl Aheard the sound of quarrel between her father-in—law and mother—in-law who were there in the next room. Then she saiti that her ! husband and brother of father-in-law called villagers and they came to see her father-in-law and mother-in-law. She did not enter into their ’5 room. She further stated that she did not see that who is beating whom. . At this stage, the prosecution declared Punni Bai (P.W.9) hostile. 9. b‘ondas u—‘.w. ‘2) is the real brother of the accused/appellant. His house is adjacent to the house of accused. He stated that appellant Heera Uas and his wife were living in one room and his son Yogesh and his Wife and children were living in another room of the same house. He further stated that at about 2.30 hrs in the night, Yogesh Narang awakened him and on being asked, he told that his father and mother were quarrelling. He also stated that Yogesh told him that he tried to pacify them but he could not do that. He advised Yogesh to call the villagers. Yogesh told him about the marpeel‘ between mother and father. He did not tell that who is heating whom. He along with Yogesh, Hariram, Daulal, Babulal, Devkaran etc. came to the house of accused. :31nce the front door of the house was not opened, they entered from back side. They found that blood Was‘ spreading in the Farcnm'. Door of the room of Heeradas was openod and the deceased and Heoradas were lying more on a cot. Whom he eaw 011 the Iight of torch, he found that there was b10061 in the room. They called Sonvati and Heeradas but they did not repiy.‘ Blood was oozing from the body of Sonvati. He alongwith Yogesh Narang and Kotwar Heerudas went to police station Kharora at about 7.00-8.00 hrs. and Yogesh iodged the. km repent. 'l‘mS Witness was cross-eaamined. He stated that Yogesh came to mm and told. that his mother and father were quarrei‘ling. In Para 4 of hie Moss examination, a suggestion was given that his brother was of unsound mind, but he denied that Heeradas was of unsound mind. £ ' .- l LU. Haii Ram (kw. 3) is another person who accompanied immediately along with RW. l and R'W'. 2 and other Villagers. ‘ He is the Witness oi seizure of Tangia and its handle, lungi and Gainchha. Naindas (RW, 4) and Babulal (KW. 5} have also stated so in their statements. Babulal (PW. 5) has stated that Yogesh and Bhauram came to call him Yogesh told that his father was beating his mother. Daulal, Naindas, Harii‘am, Devkaran and he himself and Sondas and Yogesh entered into the room of Heeradas and saw that blood was found spread in the Parcithi and Heeradas and his wife was lving on a cot. Thev called them but they did not reply. 1 1. Dr. DR. Verma (PW. 8) is the person who conducted autopsy and tound b injuries on the body of the deceased, namely, (i) incised wound pierced into soft tissue at left side of neck, below mandible in between chin and left ear measuring 3” length x l” breadth x '2” depth, big vessels cut; (11) incised wound over scalp on left temporo parietal region 8 cm x l cm, sKln deep; (iii) incised wound l” x 1" on right side of neck; {iv} cut off bones and soft tissue of right. forearm at level of junction of ower one third and middle two third; and (v) fracture over left forearm l at junction of iower one third and uppsr two third. Dr. Verma opined mat deceased ciied due to exceSsive haemorrha'ge as a result of muitiple injuries arld blood vesse1s cut. Mode of death was homicidai in nature. 1'2. One of the pleas which was raised in the cross-examination of 1 Yogesh Nalang— son of the appellant is that the appeilant was not tot sound mind. He denied the suggestion that because of mental condition, he used to quarrel with‘ anybody; however it is conect that he escaped tron: house. This question was not put to PW. Q Punm' Bai. 1 u ‘ Brother Sondas' has categorically stated that accused was not of unsound mind. There is nothing on record that he was insane at the A time of occurrence. Learned trial Judge has considered the aspect in Para '22 of the judgment about the plea of insanitv. One of the arguments was that because the accused had seen some person with his Wife in compromising condition and as such he killed her. The other argument was that his mental condition was not good. ln this regard, the evidence of brother of the accused demolishes the plea that he was ot unsound mind. He has stated that accused was not at all insane. The trial Court has observed that from the beginning of the trial, the behaviour of the accused remained normal and he has answered the question properly after understanding them. This court has also gone through the questions put to him and answer given by the accused under Section 51:5 CLEO l3. So far as question of insanity is concerned, we are satisfied that the finding recorded by the learned trial Judge that the accused was of 0 sound mind is justified on the facts and circumstances of the case and material on record. In this regard, testimony of PW. 2 Sondas is material, who is real brother of the accused and stated that he was of ’ sound mind. The Hon’ble Supreme Court in the; case of Shrikant Anandrao Bhosale —V— Staw of Maharashtra reported in (“2002)? SCC 748 has dealt with th€ matter and in pala 13 of thE judgmsnt has naa that the burden to prove that the appeiiant was of unSound mind and as a result thereof he wés incapable of knowing the consequences ol ms acts is on the defence. Section 84 LRC. is one of the provisions in Chapter iV of IPC which deals with “general exceptions”. That section proviides that nothing is an offence which is done by a person who, at the Time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he. is doing what is either wrong or contrarv to law. The burden of proving the existence ot £ circumstances bringing the case within the purview of Section 34 IPC hes upon the accused under Section 105 of the Indian Evidence Act. 1n the present case, there is nothing on record to Show that the accusedjappeiiant was of unsound mind and no materiai in this regard has been produced. 14. So far as contention advanced by the learned counsel for tne appellant that reliance ought not to have been placed on the evidence of PAM. l Yogesh Narang and RW. 9 Punni Bai is concerned, in our opinion, the Couit below has rightly relied upon the evidence. Though thev have been declared hostile, both of them have said that the accused and the deceased were sleeping in the same room. RW. l also told his uncle that he tried to pacify the accused. We are also fortified ‘bv the judgment of the Hon’ble Supreme Court in the case of Radha lvlohan Singh alias Lal Sahel) and others —v— State of U.P. reported in ' y 2006 Cri.L.J. l 1'21. it has been held in para ‘7 of that case that it is well settled that the evidence of a prosecution witness cannot be rejected in -toto merely because prosecution chose to treat him as hostile and cross-examined him. The evidence of such washed off the record ¢‘ altogsther but th€ $81136 can be accepted t9 the extent that hiS version is Iouncl 1:0 be dependable on a careful scmniny thereof. The matter haS EH aisoibe— dealt with in the ca‘ses of Bhagwan Singh v. State of Harvana (AIR 1976 SC 2021; Rabillcier Kumar Dev V, State of OriSSa (AIR 1977 SC 1‘70), Sved Akbar v. State of Kamataka (AIR 1979 SC 1848} and Khujji @, Surendra Tman v. State of Madhva Pradesh (AIR 1§9i SC i5 ). it). 'l‘ne Learned Court beiow in paragraph '20 of its judgment V . summed up the chain of 9 circumstahces and elaborately discussed them. ‘l‘neV are as under:- a a (1) The accused was present in the room aiong with his wife in H1€ mgn‘t OI 0CCuIT€I1C€. (ii) There is nothing on record to suggest that 1'11 that night any person other than the accused had entered into the room. The appeiiant also in his statement under Section 313 of Cr.P.C. has not explained any circumstance that anybody else had entered 11310 m6 IOOm. (iii) In the night of occurrence, Sonvati Cried for help from the room Where she was present along with accused and her son Yogesh Narang (RW. l) heard her cries. (iv) Hearing the cries of Sonvati, Yogesh Narang (RW. l) jumping the Wall went to the house‘ of his uncle Sondas (3W. 2) and informed that there~was a Mamcet and quarrel taking place between the accused and his mother. (v) After hearing the cries of Sonvati, Yogesh Narang (RW. l} \along with his uncle Sondas (RW. ‘2) and other Villagers entered which may call for any interference by this Court in its appellate a Jurisdiction 7/,, Ws‘and Sd is dismissed? 1' Fakhruddin Judge ‘Qt’ilyQGoe Sdl- . « V.K.Shrivatava Judge into the room of the accused and found that there was biood in the room and accused was in the room and Sonvaii was lying on a cot drenched with blood. ‘ (vi) On calling of the persons, the accused did not give any i replv from inside his room nor he said anything to them. ‘ (viii On the verV next daV, blood stained Tangia was recovered from the room of accused and the injuries found on the body of «he deceased were also caused by a sharp-edged weapon like A ‘l‘angia. A (viii) Cause of death of Sonvati was the injuries on neck, hands and body inflicted lav a sharp—edged weapon and bleeding therefrom. (ix) Appellant’s son Yogesh Narang (P.W.l) lodged FIR, against the accused by name in the police station. 16. Having considered the facts and circumstances of the case and material on record and in View of the evidence of record, which has been \\ relied upon bv the trial Court and discussed hereinabove and fuither the fact that the chain of circumstances are fully proved beyond doubt, we are of the considered opinion that the finding, conviction and sentence passed by the trial Court do not suffer from any infirmity,