HtOH COURT OF CHHATTISOARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.LJHANWAR, JJ. Appellants (InJail) Respondent Crhninal Appeal No.327 of 2(WS d * 1. Pusau Ram S/o Ratttiu Ram ©ond,aged about 58 years 2. Maan Singh S/o Pusau Ram Gond, aged about24 years 3. Thaan Singh S/o Pusau Ram Gond, aged about28years (All three are R/o village Dabripara, Rajkamma, P.S. Pali, Dlst: Korba (C.G.) Versus Stato of Chhattisgarh (CRMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIhAINAL PROCEDURE.1973) Present:- Mr.Manoj Mishra, counsd for tiw appeliante. MrArun Sao, GQvtAdvocate for tt»eState. <IUDGMENT (Passed on 23rfl September, 2010) T.P.Sharma, J.:- 1. Chaitenge in this appoal is to tbe juctgment ofGonviction & ord®rof sentence dated 27.1.2005 passed by the Sessions Judge, Korba, OT Sessiens Triat No.46/2004, whereby & whereunder tearnMl Sesstons Judge after Iwtding ttae appellant guilt fbr commission of offence of cutpabte homiclde of SwM Bai (since deceased) amounting to murder in shsu-ing common intention and for attempting to commit murder of Ramsingh in sharing common intention convicted under Sections 302 read with Section 34 of the I.P-C. & 307 read with SQction 34 of the I.P.C. and sentenced them to undergo imprisonment for life and to pay fine of Rs.1000/-, in defautt of payment of fine to further undergo R.l. for one year and R.l. for seven years and to pay fine of Rs.700/-, in default of payment offine to further undergo R.l. for one year. ^^^^ ^; ^, 2. Conviclion is impugned on the ground that without ttiere belng any iota of ©vidence, the trial Court has convicted & ^ntencad the a^etent as aforemerrtioned and ttiereby <x>mmitted iUegality. 3. Case of the prosecution, in brief, is that OR the Tateful night ef 7.1.2004 between 8 to 9 p.m. deceased Savitri Bal, wife of Ramsingh (sincecleceased) was present in her house, the appellante quarrded wtth Savttri £(N. When injured Ramsingh came to his house after sotemnizing Cherdhera f€»tival,then Savitri Bal infOTmed him that the appellants hav®quarreted witti her, ttiwi ;,,^.^..'^Y^-..;,^,;,'^. .,:y;.., Ramsingh started abusing to the appdlants, the appellants atso ^bt®ed Ramsingh, then they came with sticks and axa in the house of Ramsingh where they a$saulted Ramsingh and causecilataliniuriettof^m^igh.They also assaulted Savitri Bai and caused her death. Fathor of Rainsiingh namety Karmansingh (PW-2) caHne to his house after commission of ttw offence, h© was informed by his wife Bansiya Bai (PW-1) who was pr^eRt at tbe time of incident, then h©infbrmed the incident to other villagere and on second day Karmansingh went to th©Police Statton and lodged the F.I.R. vide Ex.P/1. Merg was rworded vide Ex.P/2. Injured Ran^ingh w®®entfor medieal examination victe Ex.P/22. He was examined by Dr. A.S.Paikra (PW-5) vlde Ex.P/3 and found foltowing Injuries: ^-^.:-^...^^ 0 incised wound <rf 5 cm. x 2 cm. x bon@ deep ovr left side ofttie neck. ii) Incised wound of1 cm. x % cm. over teft side of ttie n^k iii) SwelUng of 2 cm. x 1 cm. never right eye iv) Multtpte injuries four in numbers of5 cm. x 2 cm. wer laft ttiigh. Injury No.1 was grievous in nahire. He wss shifted bi Korto Mo^ital for further treatment. His dying dectaration was recorded vide Ex.P/5. He was treated vide bed-head ticket Ex.P/13. Investigating offteer proceeded for the scene of occurrence and after summoning the witnesses victe Ex.P^1,incpiest over dead body of Savitri Bai was prepared vide Ex.P/20. Dead body of Savltri Bai was sent for autopsy to Community Health Centre, Pati. Dr.lndu Shanditya (PW-6) conducted autopsy vide Ex.P/8 and found following injuriess i) Contusion of 2.2 cm. below left ear. li) Contusion of 7.3 cm. over cheek. iii) Contuston of 3.1 cm. ovw cheek. iv) Contusion of 2 x 2 cm. owr forehead. v) Contusion of 5 x3 cm. over ri^it eheek. ^) Lacerated wound of 1 cm. x 1 cm. x .5cm. over left eyebrow. 1®;^P^^II^I^I^^^%^^ ?^l;ff@%lll@^°%l%^^^iS^^^^^^^^Jll^S^ vii) Blood was coming from moutti and nose. , viii) Abrasion of 4 x 1 cm. ovw right neck. b() Abrasion of5 x 1 cm. over left neek. K) Contusionof3x3cm.ov©rbaeksi(teoftheneck. .; xQ Abrasion of3 cm. x 3 cm. over the neck. xii) Abrasion of .5 x .5 cm. over right index finger. xiii) Abraslon of5 cm. x 3 cm. over right elbowjQint. , xhQ Abrasion of2 x 2 cm. over tndex and middte flngers. . ; w) Muftipte abrasion of 11 x 2 cm., 3x 1 cm. and 8x 1 cm. ov@r both thighs. xvi) Confaislon of 2 x 2 wn. over envinat part. xvii) Abrasion of 3 cm. x 1 cm. over vagina. xvili) Contusion of 3 cm. x 2 <an. over perinat region. Vagina wasdiluted and haemotoma was found in the brain. Mode of death was coma and death was homidcial in nature. Bloodstained and plain soil were recovered from the spot vlde Ex.P/9. Blooelstairwd sari of the doceased was seized from the spot vicle Ex.P/10. Tendu stickwasseized from accused Pusauram vide Ex.P/11, tendu stick was atso soized from accusod Thansingh vide Ex.P/12and axe was seized from accused Ma©n Singh vide Ex.P/13. Patwari has prepared spotmapvide Ex.P/14. Policehas also prepared spot map vide Ex.P/24. 4. Statements of the witnesses were fecwded under Section 161 of Ihe CrP.C. and after completion of investigation, eharge sheet was fil^i before th®Court of Judicial MagistratQ First Class, Katghora, who in tum commitied the case to the Court of Sessions, Korba. 5. In order to prove the guilt of the accusod/appefiants, the prosecution has ©)®minedas many as 11 vfltnosses. Statements ef the accas©cya{^>ellants were recorded under Sectlon 313 of the Code where they ctenied the circumstances appearing against ttiem and pleaded innoGence and false implication in tho crime in question. The appellants have (aken spocificdefence that deceased Savitri Bai was having Hlicit relation wltti other persons. On the date of incident, another injured Ramsingh (slnce deceased) reacfted into his house and saw that his wife was with othor peison, then he killed h©r. When his father saw that his son has kilted his wife then he aiso assautted Ramsingh by axe and caused injuries and on the grounct of the land dispute, the appellants hav®been falsety implicated In the erime in qusstton. They have examined defence witnesses Amar Singh (CWV-1) and Ramsaa (DW-2),who ^x""^ '%3«ai, 4 have deposed relating to previous land dispkrte, bylthey have swlmitted ia their cross-examinations that on second day ttiey heard ttiatthe appeHants hav® kitled Savitri Bai. & 6. After providing opportunity of hearing to the parties.ioarnecl S^siws Judge, Korba conv{cted& sentenced the appellantsasaforemQnteied,, .%< 7. We have heard tearned counsel for the parUes, pwuseci te@ jud^ment impugnedandrecordofthefrialCourt. ^ 8. Leamed counset for the appeilants vehemently argued that in tfie pr^ent case, conviction is based on the sole testimony of mother of Ramstngh»nam®ly, Bansiya Bai (PW-1) which does not inspire confidence andtrustworthy.©uring pendency of the firiial, injured Ramsingh has alse died. There was fio ottier evidence to connect the appellants in flie crime in qu^tion. Learned counsel further argued that evidence of Bansiya Bai (PW-1), cireumstanc^ of the case and injuries found over ttie dead body of Savitri Bai, eepeclalty en her pffivate part and dilutton of her pri\^te part show ttiat sexualinterceyTse has been committed with h©rbefore her death which support the case ofthe defenee that she was found with some person in compromisihg position, ttien she was assaulte^ by her husbarid, but on account of Ihe land dispute ttie appellants hswe been feisely implicated in ttie crime in qu^stton. * » ? 9. On the other hand, teamed State counsei supported ttie ^tdgment impugned and argued that evidence of Bansiya Bai (PW-1) is woll corroborated by the evidence of Karmansingh (PW-2) and evidwice of ottier witaess^s that ttey have narrated the incident to other wftnesses and 1tie same are sufCreient for drawing Snference that the appellante have committed Ihe offen^. 10.1n orcier to appreciate the arguments advanced on behalf of the psffties, we have examined ttie evidence adduced on behalfofthe parties. ^ 11 .In the present case, homicidat death as a rjssuit of fatal injuries found over th@ body of Savitri Baj has not b^en substarrtially disputed on behatf cff the appellants, on the other hand, also estabtished by the evidenco of Dr.lndu Shandilya (PW-6) and autopsy rqx>rt Ex.P/8. Likewise fatal in}uifes found over ttie body of Ramsingh (since dweased) hav®not been sutetanSaily disputed on behalf of the appellants, on the other hand, atso established by the evidence of Dr.S.S.Paikra (PW-5) and medicat examination report Ex.P/3. ^—^^: -^y.^-'^.. ^ ;'iSi|!j|ggi|?%'iJi?giP^t%|Stl^^^ 12.As regards the complicity of the appellants in tt»crtme in qu^Uony con^ctiorii is substantialty based on the evidenee of Bansi^ Bai f?W-1), rmrther of Ramslngh, who has specifically deposed that on the date mcident thera was Cherchera festival. Her son and husband were not present in the house, the appeltante were quarreling witti her cteughteMn-law SavttR 8ai (sinee deceased), Savitri Bai was weeping in h©rhouse. When hu^)aiid<rfSaw rt°6ai came to his house at evening, then she tokl the incjdent to her husband, ttien her husband Ramsingh abused the appetlants fran his house, tie appeltartits who present in their housewere also abused Ramsingh, then alt'tie appellants came to her house, appetlant Mansingh was holding ax@ and appetlants Thansingh and Pusauram were hotding sticks,they assautted f^msingh and also her daughter-in-law Savttri Bal, Ramsingh fell down and Sa^tri Bal died on the spot. After sometime her husband came back whom she narrated the incident, then they called Mila Bai, Babulal and Mangal whom tiey narrated th» incident. Defence has cross-examined this wibiess. IR her Gross"exaf^nation, there are some contradicBons relating to narration of incictert by Savitri Bai to her husband, factum of using fitthy language by her son and using of filthy language by the appetlants, quarret between the appetlants and h@r s@n, but there is no confradiction and omission relafing to substentive e^denee ttiatthe appellants had not come in her house, they will notarm vwth tie weapons and they have not assautted Ramsingh and Savitri Bai. In para 10 ^f her eross- examination, she has admitted that at the time of incldent ther®was dark but she has deposed that ttie appellants were known to her, ttierefore, she has identified. She has denied the suggestion that Iror son has as^iulted her daughter-ln-law and her husband has assautted her son Ramsingh. 13-Karmansingh (RW-2), husband of Bansiya Bai (PW"1) has aubstantiaily corroborated the evidence of his wife. Mangal (PW-3) and Tijbai <PW-4) and even Mila Bai (PW-10) have admitted the fact that they w@re Immediately called by Karmansingh. Even defence witnesses Amar Singh (DW-1) and Ramsai (DW-2) have admitted in theircross-examinations that that on second day they came to know that the appellante have killed Savitri Bai. 14.D©Rnitely,injuries found on priwate part of cteceased Sav'rtri Bai and her vagina was diluted which was suggestive of the fsact that sexuat tntereeurse has been committed with her, but that alone fact is not sufficient for drawing inteiference that somebody other than her husband has committod sexual intereourse. especially Ihe fact that they have taken th©defence ttiat swne other person was with Savitri Bai,buttheirdefence witneaseshave nottoldthe nameofthat person who was seen with Savifri Bai. 15.Evidence of Bansiya Bai (PW-1) reveals that firstty ihe appellants have quarreled with Savitri Bai, thereafter, they cam®and assaulted Sa^tri Bai and Ramsingh, they were ttiree in numbers and they had com®from ttieir house with axe and sttcks show their common intentton for caustag such injuries. There are some confradicyons and omissfons in the e^dence NBarwi^i Bal (R/V-1), but only on the ground of some contradtetkms and omtss(ons»her ©vidence cannot be discarded. Even otherwise, her evidence is well Gorroborated by Ihe evidence of other wftnesses. Her evidenee irepires confidence and is sufRdent for drawing inference that the preswrtsapp@narit& are the persons who have caused injuries to Fteimsingh and <l^i i ofSawitri Bai. 16-After appreciating the evidence availabte on record, learned Sesstons Judge, Korba convicted & serrtenced the appellantsas aforementi<Mied. Con^ction & sentence of the appellants are based on ca'edibte, dinching and tegat evidence susteinabte under the law. .. .•.-•.^.•^•^^ 17.0n close scrutiny ofthe evidence, we cto not find any iilegatity in thejvc^ment inyugned warrantlng any interference. Consequwfly, ttie appeal being deveid of merit is liable to be dismtesed and ft is hereby disnfrfssed. Appetlarrt No.1 Pusau Ram is on bail, he shatl surrender forthwith before 1h©Sessions Judge, Korba forserving the sentence imposed upon him in Sessions Triat No.46/2004. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge B/-