APPE1.LANT: (liiJail) RESPONDENT: HIGHCOURTOFCHHA.TTISGARH.BILASPUR CriminalADDealNo.1134 of 2002 Guruwaru, ^S/b Dokari Mainjhl, aged about 40 years, R/o Bhalupakhan, P.S. Dharamjaigarh, District: Raigarh(CG). <f. -Ver?us- State of Chhattisgarh. JUDGMENT FOR GONSIDERATION -i-t sd/- HON'Bl-EMR.JUSTICEDHIRENDRAiMISt-tRA LC..Bhado;^ judge 'J^ :^aB: '.''•• Y Sd/- DfflRENDRA MISHRA Judge ;Jl~-. POST FOR.PRONOUNGEMeNT OF .iUDGMENI' ON <»3JULY. 2007 Sd/r L.C. Bhadoo Judge ^ APPELLANT: (InJail) HIGH COURTOFCHHATTISGARH.BILASPUR Criminal Appeal No.1134of20Q2 Guruwaru, S/o Dokari Manjhi, aged about 40 years, R/o Bhalupakhan, P.S. Dharamjaigarh, District: Raigarh (CG). - Versus - RESPQNDENT: State of Chhattisgarh. (Criminal Appeal underSection 374 (2) ofthe Criminal Procedure Code) R'esent: Miss Sangeeta Mishra, Advocate: Mr. Ashish Shukla, Additional Public Prosecutor: Fortheappellant. For the State/respondent. CORAM: - HON'BLE SHRI L.C. BHADOO AND HON'BLE SMRI DHIRENDRA MISHRA. JJ. JUDGMENT (Delivered on c'3 July, 2007) Thefollowina iudamentofthe Court was delivered bvL.C. Bhadoo, J: - 1. This appeal is directed against the judgmsnt of conviction andorder of sentence dated 29-12-2001 passed by the 3 Additional Sessions Judge, Fact Track Court, Raigarh in S.T. No.138/2000 wherebyteamed Additional Sessions Judge after tolding the accused/appellant guilty for commission of offence under Section 302 of the I.P.G., for committing murder of his wife namely, Manmoti, sentencedhim to undergo imprisonment for life. 2. The case of the prosecution, in brief, is that PW-1 Jhariak report in the PolieeStation Dharamjaigarh on 8-5-200Q today morning he along with his wifewentto the market.' Ram lodged a to ttle'effeet that ofPaththalgaon. 2'' K I m^v KS': EIE t'vm u G!I When they returned at about 8.30 a.m. from the market, Hariram and Chamar Singh informed him ffiat Guruwaru has committed the murder of his sister; Immediately, he went to his house and saw that his sister Manmoti was lying dead. There were ihjurieson the left parietal region. Blppd was oozing out of the injuries. The villagers caught the accused and kept him in the school. Merg intimation Ex,-P/2 was given by Jhanak Ram, b^edt'on that first information report Ex.-P/1 for commission of otfence-under Section 302 of the IPC was registered by Sub Inspector Sanjay Tiwari (FW-8), who immediately left for scene of occurrence and prepared inquest Ex.-P/4 on the body ofthe deceased and sent the body for postmbrtem examination to the Primary Health Centre,Dharamjaigarhwhere Dr.Smt. Bindy Singhal (PW-5) conducted postmortem on the S^yofWe deceased, prepared poStmortem report^ Ex.-P/S and opined that cause ofdeath was due to'coma as a resultof head injury. Axe, weapon of bffence, was seized frQm the aceused tihder Ex.-P/T, same was sent to the Assistant Surgeon fbr his opinion under Ex.-P/10-A and tie opihed that injuries found on tHe body bf the deceased can be caused by axe in questibn. 3. After completion of the investigation, chargesheet was filed against the accused in the Court of Judicial Magistrate, 1 Class, Dharamjaigarh,! who in tojrn committed the ciase to the Sessioris Judge, Raigarh, from where learned Adclitional Sessions Judge received tlie case;on transfer' fbrtrial. •:• ; •: ' : . •:'. :; • ,' . .: : • ..••••. .-•" 1',: < 4. The prosecution in orderto establish the chai^e ^ainst the accysed e)Qmined 8 witnesses. ^tatement of the accused was TeGorclecl upder SeGtion313oftheer.P.G;inwhichhedeniedmatenalapi anngagainst;| hjm in the prosecnjtion evidence.statedthathei&ijinocait^ndtieyhas not committed the crime. IJ: ). ! •lli'ti 5. Learned Additional Sessions Judge after hearing learned counsel for the respective parti^s, convicted and sentenced the accused as aforementioned. 6. We have heard Miss Sangeeta Mishra, leamed cQunsel for the appellant and Mr. Ashish Shukla, Additional Public Prosecutor for the State/ respondent. *?. 7. Leamed counsel for the accused/appellant has not disputed homicidal death of the deceased. Even otherwise, from the ocular evidence of PW-4 Phoolmati.a child witness, who has stated that the accused attacked the deceased, her aunt, with axe and from the medical evidence of Dr. Smt. Bindu Singhal, who conducted postmortem on the body of the deceased and has stated that there was injury on the head towards back side ofthe leftear in the size of 9cm x 2.5cm, bone deep, there was contusion, elotted blood was present and bone beneath injury was fractured, brain wasvisibte from the injury; on opening the body.it was found that brain matter was liquefied, lungs were, pale, both chambers of the heart were empty, cause of death was coma as a result ofhead injury, death was homicidal in nature, it is established that death of the deceased was homicidal in nature. 8. As faras involvement ofthe accused/appellant in the crime inquestion is coneemed, PW-4 Phoolmati, 7 years girl and daughter of PW-1 Jhanak Ram, has stated that at the relevant time she was at residenee. She saw that theaccused attacked the deceased with axe, as a result of whiish the deceased sustained injuries and died. Seeing that she raised cries and disclosed to her parents. Learned counsel for the atecused/appellant argued that in para-3 of crQss-examination sh&.has stated that pn that day she came .along with Kamal Sai and her.father. They said thatyou should tellthat you saw the accused attacking1:ha3eceased? Therefore, % being child wifness, she was tutored witnes^ ariclreljance.canhot;fie ss*! placed on her evidence. - '_::-;:'1 , , . .^.'-•":.~..^-^^ 9. In order to appreeiate the argument adyanced by-learned couhsel;T6r"tfte •':S3:C accused/appellant, we. hay®perQsed ^evidence of this witness^ ySS«Kys2Si witness liaiS categpneally stated -that on the vfateful day :s.h^ waS--at^afa,,- residence and ih her pi^sence onfy the accused attacked the deeeased—=—? with axe. In cross-examinafibn, she has categoricalty stated tliat ^it jsgg^.1 incorrect to say that she »?as rioCSt residence. She saw the .accusecfi:—|^| attacking the deceaswf; -It IS in.Oorrect to saythat she did-notisge]Wet2^ accused attacking the cleceasecl.n Therefore, in''view^of tB&7a6otfg:?S|= evidence, it is establisliea that sBe was present and she herseffsaw"tReS@i- accused attackiBg^lie^deeeg?ecf^--As far as her evidsncethatshe came? s;!;, along with Kamal Sai and ftstlatHer for giving evidence:and-they saKl^ssS;' that you tell:tKat.you saw Ih^^sjcicused attaclang thg ^gc^a^dSdlBji.sig; concerned, that does not^ mean^Wat she was tutored ;t®Sgive-?^)sfe';;-5';; evidence.WRen^shehascategoricallystatedthatshesawtheaGGiB^TSgB? attacking the deceasea, even if herfather and Kamal Sai asked^Beitgg'Sil disclose wliateKer was seen;by~her, tfiat does affecfthe craclJbilit^ol8^S|g| evjdenceoftUs witness. ;: 3 .; „. A AB~~S?—i ^^••..•'•''^^^ .^- ^..—-;.^;'! ' ~^..i":". """•;.^2^.^'^^•'E lO.Learned counsel for the aecused/appellant further argued that iri :tii% gsgg| same para thi& witness ^hasstatect ffiat she had not seeri 1liat at whipKggg'j 1 '.^'"^~:'~~''e-v'SWysi^Sii -tt—tiEl-ft?"'*"^".-'?*'?1: place the accused at^aeked. Being 7^years old child iHs not necessarjg's:'^;^ :.., ,:,y;^,^'—t-,wS^,i^: fbr her to narrate all-minute-c)6tails of erime that on which partoftHiftfglg '"~>*i-1 » body the accysed attacked;;<Ttiis wjtness was preserit in-the hgusSanWSB .S^. -^^ ^'''"'S?-"""^'*^1"' ':.- '•"I.U'.^^-'^fX^^^^l ..fc.;.;.-^-.'-^i-J'.' 'lVW''^'^^'^'*^^3?^'^3r!\ she simply saw the accused -at^kjng-the deceased, that Jhias.begB^jiUsSl^j j ..... .. -./.-J. .••.<.':;; »<.;•-?•»•••~'..:-<l'''*ii?M..a.-»l--i—-!;;'.') by her, There is no reaspn ta^ishglreve the evidence of this.|witi|ieag||.j^g| i '••':• .'..:';.^. "V;.^ ^ -i?.' '^'••^- ••^':A''.<'5;1^'S^I ^VSP^ aiii -ESI •:•'"'?:"°?!~;| r.:^''?^S'^l SSESI ;il ;!U! Evidence of this witness inspire confidence of the Court that she had witnessed the acci^sed attacking the deceased. 11.PW-2 Hariram and F?/V-3 Chamar Singh have stated that 6n the fateful day they returned from the river side, they saw^that the accused was coming from the side of Jhanak Rarn'house earrying axe in his hand stained with blobd. They enquired from the accused 'what you have ^,: *!. •• . ^ . •: ; , _.^; done', on which he replied that 'go and see at the residence of Jhanak ^; Ram'. They caught the accused and kept him in the school. They^|g|; snatehed axe.closed him in a school room, thereafter they went totfTeSjjj house ofJhanak Ram and sawthatdead bodyofthewifeoftheaccused-SK was lying 1n the house. There was injuiy on the head.; Blbod was oozing ^5: out of the injury. On further enquiry, Guriiwaru said that Manmoti has . .beenmurdered. , • - .,,.. . .^ .. , s 12. Learried counsel for the appellant argued that the accused has not made extra judicial confession before these witnesses in clear cut words that he in fact, committed murder of the deceased. 13.But, from the evidence of these witnesses, it has come on record that.^-i they saw the accused comingfromthe side ofthe house ofJhanak Ram; ;. ^ dead body of the deceased was lying.the aepysedwas carrying axe ii3 stained with blood. On their enquiry, heasked them togotothehousey of Jhanak Ram and see what has happened, thereafter, they wentthere and saw that the d6ad body of the deceased was lyihg. Therefore,the accused in clear cut words disclosed to them ffiat what has been done by him. He was carrying blood stained axe. He was coming from the house of Jhanak Ram and he disclosed to them^hat thsy shqulcl go^and - ^ see the house of Jhanak Ram what he has done; They-immediatelyA ;: weht and saw tjiat the dead body of the deceased was lying in thie^lieussv:- l' :ir /.^ 6 Ban/e of Jhanak Ram. This conduct even if is not treated as extra judicial confession, even'then conduct of the accused andcircumstantial evidence is admissiblein evidence against the accused. 14.Axe in question was seized by these pereons and thereafter that was seized by the Investigating Officer under Ex.-P/7, same was sent to the Forensic Science Laboratory from where report Ex.-P/15 was received. In that report, it has' beeh mentioned that axe was found stained with blood. Therefore, we are of the considered opinion that from the evidence of PW-4 Phoolmati and circumstantial evidence adduced by PW-2 Hariram and PW-3 Chamar Singh, it is established that the accused was the author ofthe crimein question. 15.1n thecircumstances.we do not find any illegality or infirmity in the judgment of the trial' Gourt. The appeal fails, same is liable to be dismissed and itis herebydismissed. ^^^yj^-. Sd7. L.C. Bhadoo Judge \ Sd/- DHIRENDRA MISHRA Judge i} ^