n'%°''-'.,-:: ^ HIGH COURT OF CHHATTISGARH AT BILASPU1 DIVISION BENCH CORAMS HON'BLB MR. T.P. SHARMA & HON'BLE MR. RANGNATH CHANDRAKAR. JJ. Cr.A. No. 30/2009 APPELLANT (Injall) RESPONDENT VERSUS Dittinus, S/o Mikhail, aged about 23 years, Occupation Agriculture, R/o VUlage Saitangartoli, P.S. Jashpiir, District Jashpur (C.G.). The State of Chhattisgarh, through, P.S. Jashpur-Nagar, District Jashpiir (C.G.). CRIMINAL APPEAL, UNDER SECTION 374(21 OF THB CODE OF CRIMIAL FRQCEDURE. Presenfc- Mr. A.K. Prasad, Advocate for the appeUant. Mr. Neeraj Mehta, P.L. for ftie State/respondent. JUDGEMENT (Passedon 27/09/2011) The foUowing iudgment of the Court was passed bv T.P. Sharma. J:- 1. ChaUenge in fhis appeal is to fhe judgment of conviction and order of sentence dated 15/9/2005 passed by Sessions Judge, Jashpur, District Jashpur (C.G.) in Sessions Trial No. 88/2004 whereby and where iinder after holding the appeUant guUty for the commission of ofience of culpable homicide amounting to murder of his step mother Rojaliya, convicted the appellant under Section 302 of the Indian Penal Code 8& sentenced rigorous imprisonment for life. ^' Conviction is tmpugned on the ground fhat without any iota of evidence sulficient for conviction of appellant Court below has convicted and sentenced fhe appeUant as aforementioned and thereby couimitted an Ulegality, As per case of the prosecution on fateful day of 31/7/2004 at about 7:00 P.M. unfortunately RojaUya (suice deceased) and PW2 Asuntata minor aged about 7 years were present in their house, appellant assaulted his step mother Rojaliya by stick over her head and caused fatal tnjury resulting tnto her instantaneous death. PW2 Asuntata went to the house of PW1 Namita Khalkho and infonned her incident then she came to house of RojaUya and saw fhe dead body of Rojaliya thereafter she went to the Police Outpost Lodam and lodged First Information Report vide Ex. P-1. Mar^ intimation was recorded vide Ex. P-14, Investigatin^ Of&cer left for scene of occurrence and after summoning the witnesses vide Ex. P-3, inquest over the dead body of Rojaliya was prepared vide Ex. P-4. Dead body of Rojaliya was sent for autopsy to Block Medical Officer, Lodam where PW4 Dr. Raiendra Singh Raj conducted autopsy vide Ex. P-5 and found followm^ injunes:- (i) One lacerated semiluner shape wound over right side of head of 11 x 4 c.m. x bone deep. (ii) Lacerated wound over back of the neck upon occipital area of lOx 5 x4 c.m. (iii) Contusion of 4 x 2 c.m. over left scapula. Mode of death was shock and death was homicidal in nature. 4. Asuntata also received injury and she examtned by PW4 Dr. Rajendra Singh Raj vide Ex. P-6. Blood statned and plain soil were i^covered from the spot vide Ex. P- 9. Wooden plank was seized froia the spot vide Ex. P- 10. Blood stauied cloths of Roialiva was seized vide Ex. P-11. Patwari prepared spot map vide Ex. P-13. Sealed cloths of deceased Rojaliya was seized vide Ex. P-15. Articles were sent for chemical examination vide Ex. P- 17. 5. Statements of the witnesses were recorded under Section 161 of the Code of Cnminal Procedure, 1973 (in short the Code^. After completion of fhe investigation charge sheet was filed before fhe Chief Judiciat Magistrate, Jashpur who in tum committed the case to the Court of Sessions, Jashpur, District Jashpur (C.G.). 6. In order to prove the guilt of the appellant prosecution exacained as many as 8 witnesses. Accused/appellant was examined nnder Section 313 ofthe Code where he denied fhe ctrcumstances appearing against him and pleaded innocence and false impllcation in fhe crime in question. 7. After affording an opportiiruly of hearing to fhe pardes, leamed Sessions Judge, Jashpur, District Jashpur (C.G.) has convicted and sentenced the appellant as aforementioned. 8. Mr. A.K. Prasad, leamed counsel for the appeUant and Mr. Neeraj Mehta, P.L. for the State/respondent are heard. Judgment iaipugned and record of the Court below perused. 9. Leamed counsel for the appeUant vehemently argued that conviction of the appeUant is substantially based on the evidence of PW2 Asuntata, child witness aged about 7 years whose evidence does not inspire confldence, trustworthy 8s her evidence is not siifficient for conviction of the appeUant without further corroboration from independent soiirces even othenvise considering injiiries found over the body of Rojaliya. The act attributed to appeUant does not travel beyond the scope of under Section 304 Part-II of the Indian Penal Code. 10. On the other hand, leamed Panel Lawyer for the respondent/State opposed the criminal appeal and argued that repeated fhree injiiries found over fhe head of Rojaliya clearly shows the intention of the appellant ^- •'<• li %.J^ 1 ^-sSss ^ & evidence of PW2 Asuntata tnspire confidence, trusttyorthy and same is sufficient for conviction of the appellant. 11. In order to appreciate the ai^um.ents advanced on behatf of the parties, we have examined the evidence adduced on behalf of fhe prosecution. 12. In fhe present case, homlcidal deafh as a resiilt of fatal injury found over fhe head of deceased RojaUya has not been substantially disputed on behalf of the appeUant on the ofher hand, otherwise also established by the evidence of FW4 Dr. Rajendra Stngh Raj 8s, autopsy report Ex. P-5 and death of Rojaliya was homicidal tn nature. 13. As regard the complicity of appellant in crime m question is concerned, conviction of the appeUant is substantially based on ftie evidence of PW2 Asuntata, 7 years aged child witness; after satislying it child witness was able to understand the question put to her and was able to give answer rationaUy but not able to understand fhe duty of speak trufh with administerin^ oafh trial Court has exaniined her, she has deposed in Para-2 of her evidence that appellant has caused injuries over the head of her mother thereby her mother was died. In Para-3 of her evidence she has deposed that she went to fhe house of Namita Khalkho, she was '37 weeping but did not infonn her. In her detail cross- examination especially in Paras-4, 5 & 6, she has specttically deposed fhat she is not stating what she was tutored by her sister-tn-law, her sister 85 one Edrish but she has deposed what she has seen. In her mitial interrogation she has deposed that she did not knew where her mother. Her enttre evidence clearly reveals that even she was not tn position to state whether her mother is alive or dead. Her age was 7 years, she is child witness, it shows her trufhfutness, she has neifher exaggerated her statement nor deviated from the version/facts for which she was witnessed, she is fuUv reliable witness. FW1 Namita Khatkho has admitted. fhat she has lodged Ftrst Information Report. Death of deceased Rojaliya that too as homicidal death is not disputed. Evidence of PW1 Namita Khalkho is admissible only to the extent that step mother of appeUant Rojaliya died on ttie date of incident. Appellant has caused fatal injuries to Rojaliya. Appellant has not offered any explanation tfaat why he has caused injury to her mother (step mother). These cu-cumstances are sulficient to establish the fact that present appeUant has eaused homicidal death witti intent to cause deafh ofRojaliysL 14. After appreciating the evidence available on record, leamed Sessions Judge, Jashpur, District Jashpiir (C.G.) has rightly convicted and sentenced fhe appellant as aforementioned. 15. On close scnitlny of the evidence, we do not find any illegality or tnfirmity in fhe judgment of conviction and order of sentence. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is hereby dismissed. Sd/- ~ - - T. P. Sharma Judge Sd/- R.N. Chandrakar Judge {!""