HIGH COURT OFCtiHATTISGARH, BILASPUR APPELLANT: (In Jail Custody) RESPONDENT: Criminal Appeal No.698 of 2002 Sant Ram son of Ghasi Ram, aged about 20 years, resident of village Ganganagar, P.S. Khamtarai, Distt. Raipur, C.G. Versus State of Chhattisgarh, Through P.S. Khamtarai, Distt. Raipur, Chhattisgarh. {Criminal appeal under Section 374 (2) Cr.P.C} Present: Mr. V.P. Gupta, counsel for the appellant. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble hflr. Gulam Minhaiuddin, JJ ORAL JUDGhflENT (13-7-2011) T.P.Sharma^.J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 6-5-2002 passed by the 2" Additional Sessions Judge, Raipur in Sessions Trial No.424/2001, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of his father & mother namely Ghasiram & Kaushalya Bai, respectivety, convicted the appellant under Sections 302 & 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.5,000/-, in default of payment of fine to further undergo Rl for two years, separately on both counts. 2. Conviction is impugned on the ground that wi.thout any iota of evidence, the trial Court has convi&ted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 12-7-2001 at about 2.30 p.m. the appellant was present in his house where his father Ghasiram (since deceased) was also present, the appellant chopped the neck of his father by betel axe and caused other fatal injuries resulting in / his instantaneous death. The incident was witnessed by one Manoj - son of Purnima Bai (PW-2), who shouted that the appellant has chopped the neck of his grand-father namely Ghasiram. Purnima Bai (PW-2) came out from room, the appellant was holding betel axe and on being asked, he told that he will kill her also, then she shouted for help, at the same time, unfortunate deceased mother of the appellant Kaushalya Bai came, she demanded knife from the appellant to which the appellant refused, thereafter, he pushed his mother in the pond adjoining to his house and caused the death ofhis mother Kaushalya Bai. Purnima Bai (PW-2) lodged FIR vide Ex.P-5 and merg vide Exs.P-3 & P-4. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Exs.P-7 & P-8, prepared inquests over the dead bodies of deceased persons Ghasiram & Kaushalya Bai vide Exs.P-9 & P-10. Spot map was prepared videEx.P-12. Bloodstained petticoat of Purnima Bai (PW-2) was seized vide Ex.P-13. Bloodstained and plain soil, bloodstained cloth and handle of betel axe were recovered from the spot vide Ex.P-16. Dead bodies of Ghasiram & Kaushalya Bai were sent for autopsy to Chief Medical Officer, Medical College Hospital, Raipur vide Exs.P-18 & P-19. Dr. Sanjay Kumar Dadu(PW-l) conducted autopsy on the dead body of Ghasiram vide Ex.P-1 and found following injuries: - (1) Incisedwound over left part of head inthesizeof6c.m. x 1.5c.m., bone of right ear and mastoid region were found cut. (2) Incised wound over leftmastoid region in the size of 5.5 c.m. x 2 c.m. up to muscle deep. (3) Incised wound of 5 c.m. x 1.5 c.m. near injury No.2 up to muscle deep. (4) Incised wound of 5 c.m. x 2 c.m. near injury No.3 up to muscle deep. (5) Incised wound of 7 c.m. x 2 c.m. over left mandible region, left mandible bone was found cut. (6) Incised wound of 6.5 c.m. x 2.5 c.m. over right side of head, bone beneath the injury was found cut. (7) Neck was chopped. (8) Incised wound of 1 c.m. x 0.2 c.m. over left palm. (9) Incised wounds of 1 c.m. x 0.1 c.m. and 0.5 c.m. x 0.1 c.m. over fingers of left palm. Mode of death of Ghasiram was shock and death was homicidal in nature. Dr. Sanjay Kumar Dadu (PW-1) also conducted autopsy on the dead body of Kaushalya Bai vide Ex.P-2 and found following injuries: - (1) Incised wound over head in the size of 1 x 0.2 c.m. scalp deep. (2) Incised wound over right hand on palm in the size of 6 c.m. x 1 c.m. (3) Incised wound over right thumb of 0.5 c.m. x 0.1 c.m. (4) Internal organs were congested. (5) Blood mixed froth was found in neck and in trachea. Cause of death of Kaushalya Bai was asphyxia as a result of drowning and death was homicidal in nature. During the course of investigation, the appellant was taken into custody, he made discloser statement of betel axe vide Ex.P-14 and same^was recovered at his instance vide Ex.P-15. Bloodstained cloths ofthe appellant were seized vide Ex.P-17. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Raipur who committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as eight witnesses. The accused/appeltant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. He has examined Dr. M.K. Sahu (DW-1) and has taken defence that at the time of commission of offence he was mentally ill and was not having knowledge of the act committed by him. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicte.d and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 8. Learned counsel for the appeltant vehemently argued that conviction is based on evidence of relative witnesses Purnima Bai (PW-2) & Kush ' ' Kumar (PW-4) which does not inspire confidence and is not trustworthy. The appellant has taken specific defence of mental illness. He was not required to prove his defence like that of the prosecution and evidence adduced on behalf ofthe appellant by examining Dr. M.K. Sahu (DW-1) is sufficient to establish his defence. 9. On the other hand, tearned State counsel opposed the appeal and submitted that this is a case of brutal murder of mother & father of the appellant by dangerous weapon betel axe. Evidence adduced on behalf of the prosecution is sufficient for drawing inference that only the appellant has caused death of his mother & father. 10.1n order to appreciate the arguments advancedon behalf of the parties, we have examined the evidence adduced on behalf of the parties. 11.1n the present case, homicidal death of deceased Ghasiram - father of the appellant, as a result of fatal injuries found over his person has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. Sanjay Kumar Dadu (PW-1) and autopsy report Ex.P-1 that death of Ghasiram was homicidal in nature. Likewise, homicidal death of deceased Kaushalya Bai - mother of the appellant, due to asphyxia as a result of drowning has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr.Sanjay Kumar Dadu (PW-1) and autopsy report Ex.P-2 that death ofKaushalya Bai was homicidal in nature. 12.As regards complicity of the appellant in the crime in question, conviction of the appellant is substantially based on evidence of Purnima Bai (PW- 2) & Kush Kumar (PW-4). 13.As per evidence of Purnima Bai (PW-2), on the fateful day she was sleeping in her room, her son Manoj shouted that his uncte i.e. the appellant herein chopped the neck of his grand-father Ghasiram, then she came out of the room, the appellant was holding knife, on being asked the appellant told that he will cut her also, she saw the chopped neck/dead body of her father-in-law Ghasiram, she shouted for help 'bachao bachao', at the same time unfortunate deceased Kaushalya Bai, who had gone out of the house to attend the call of nature, came and demanded knife from the appellant whieh the appellant was holding, the appellant refused and then again she directed her son to throw away the knife, but the appellant refused on which Kaushalya Bai directed her son to throw the knife in the pond, at the same time, the appellant pushed his •r •F" Ba. 1.,,-i-aF. ^t»>. 'a€...o!ls mother Kaushalya Bai in the pond adjoining to his house, thereafter, the appellant jumped into the-p&nd and caused her instantaneous death. This witness went to the police station and lodged merg vide Exs.P-3 & P-4. 14.Kush Kumar (PW-4) - husband of PuFnima Bai (PW-2) and another son of the deceased persons, has deposed in his evidence that he was informed by his wife that his mother & father have been killed by the appellant, then he came to his house where he saw the chopped neck/ dead body of his father and the dead body of his mother was floating in thepond. 15.Defence has cross-examined Purnima Bai (PW-2) at length in which she has denied the suggestion that her husband has committed the aforesaid offence. She has also denied the suggestion that the appellant has committed sexual intercourse with her and, therefore, her husband was annoyed and threatened the appellant that he will cause injury to him. She has further denied the suggestion that at the time of quarrel/scuffle her mother-in-law fell down in the pond and thereby she died. She has also denied the suggestion that her husband has chopped the neck of her father-in-law Ghasiram. Evidence of Purnima Bai (PW-2) well corroborated by merg Exs.P-3 & P-4 and FIR Ex.P-5, is sufficient for drawing inference that the appellant has caused homicidal death of his fatherGhasiram. 16.As regards homicidal death of Kaushalya Bai, as per merg intimations lodged by Purnima Bai (PW-2) withinone hourofthe incident, Kaushalya Bai was trying to snatch betel axe from the appellant and during the course of such snatching, both the appellant & Kaushalya Bai went towards the pond where the appellant pushed his mother Kaushalya Bai on which Kaushalya Bai fell down in the dabri small pond and died as a result of drowning. However, in her evidence before the Court Purnima Bai (PW-2) has specifically deposed that the appellant pushed his mother in the pond, thereafter, he jumped over his mother and killed her by drowning. These facts do not find support from the immediately lodged merg Exs.P-3 & P-4 and FIR Ex.P-5. Except two incised wounds over palm of Kaushalya Bai, no other injury has been noticed by Dr. Sanjay Kumar Dadu (PW-1), especially over chest or other parts of the body showing further assault or act of the appellant. On the other hand, ^MJ¥;:iisBI^^^^ S^^swsuav ^.i iX ii\. ^' :;<; evidence of Purnima Bai (PW-2), merg Exs.P-3 & P-4 and FIR Ex.P-5 reveal that the appellant was holding betel axe after causing homicidal death of his father which deceased Kaushalya Bai demanded and then she tried to snatch the betel axe from the appellant. 17.As per evidence of Purnima Bai (PW-2), firstly Kaushalya Bai directed the appellant to throw the weapon, thereafter, she directed him to throw the weapon in the pond, but the appellant refused and atthe time of such conversation, the appellant has not caused any injury to Kaushalya Bai, though he was holding betel axe. Thereafter, Kaushalya Bai tried to snatch betel axe from the appellant, and the appellant & Kaushalya Bai went towards the pond where the appellant pushed her in the pond. The appellant was having sufficient opportunity to kill Kaushalya Bai or cause her homieidal death by using betel axe which he was holding, but he has not caused any injury to her by betel axe, Injuries found over the person of Kaushalya Bai reveal that same have been caused while snatching of betel axe. This shows that the appellant was not having intention to cause death of Kaushalya Bai. 18.Contradictory evidence of Pumirna Bai (PW-2) and merg intimations Exs.P-3 & P-4 recorded by her do not inspire confidence and are not trustworthy to the extent that the appellant has pushed Kaushalya Bai in the pond, thereafter, he jumped over Kaushalya Bai and killed her by drowning. Inter alia, evidence of Purnima Bai (PW-2) and merg intimations Exs.P-3 & P-4 reveal that the appellant was not having intention to commit deafh of Kaushalya Bai and he has not tried to cause any injury to her, though he was having betel axe in his hand. 19.Consequently, evidence of Purnima Bai (PW-2) relating to causing homicidal death of Ghasiram by dangerous weapon, by the appellant, inspires confidence and is trustworthy, however, her evidence relating to pushing of Kaushalya Bai in the pond and jumping over her does not inspire confidence and is not trustworthy. The prosecution has not collected any other evidence to establish the fact that the appellant has caused homicidal death of Kaushalya Bai. 20. Injuries found over the body of Ghasiram are sufficient to establish the fact that the appellant has caused homicidal death of Ghasiram with jntent to cause death. The appellant has taken specific defence of insanity i.e. exception available under Section 84 of the IPC. The ' . — - . „ -—' 1-3" A^^i'-i^-^' appellant was under obligation to prove the exception in terms of Section 105 of the Evidence Act. He has examined Dr. M.K. Sahu (DW-1), who has medically examined the appellant on 14-9-2001 after about two months of the alleged incident, whieh is not sufficient to prove the fact that the appellant was mentally 111 on the date of incident. 21.Evidence adduced on behalf of the prosecution is suffident to establish the fact that the appellant has caused homicidal death of Ghasiram with intent to cause his death, but evidence adduced on behalf of the prosecution is not sufficient to prove that the appellant has caused homicidal death of Kaushalya Bai with intent to cause her death. By convicting & sentencing the appellant under Section 302 of the IPC for homicidal death amounting to murder of Kaushalya Bai, the trial Court has not considered the aforesaid circumstances, especially the contradictory evidence of Purnima Bai (PW-2) and merg recorded by her, and thereby committed illegality. 22.Consequently, the appeal is partly allowed. Conviction & sentences of the appellant under Section 302 of the IPC for causing murder of Kaushalya Bai are hereby set aside and the appellant is acquitted of the said charge. However, conviction & sentences of the appellant under Section 302 of the IPC for causing homicidal death amounting to murder of Ghasiram are hereby maintained. gjy. =° G. Minhajuddin Soma Sd/- T.P. Sharma Judge Vacation Judge f