m HIGH COURT OF CHHATTISGARH BILASPUR Criminal Aggeal No.853 of 1992 APPELLANT: Raiman Tirkey, S/o Bhodo Tirkey, Caste Uraon, aged about 19 years, R/o Kharibahar‘ Police Station Farsabahar, Distt. Raigarh (C.G.) _e Versus RESPONDENT: State of Chhattisgarh {Criminal appeal under Section 374 ofthe Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. Akhil Mishra, Deputy Govt. Advocate for the State/respondent. g Division Bench: - Hon’ble Mr, T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ K ORAL JUDGMENT (12—3—2010) T.P. Sharma, J: - “1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 28-4-1992 passed by the Additional Sessions Judge, _ ‘T Jashpur Nagar, in Sessions ,Trial No.157/90 whereby learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Kali Tirkey, convicted the appellant under Section 302 of the l.P.C. and sentenced him to undergo f, t g: é‘ imprisonment for life. . Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant as 1 aforementioned and thereby committed illegality. . Case of the prosecution, in brief, is that on the fateful day of 30-7-90 at about 2 p.m. while Kali Tirkey (Since deceased) was going by his Luna moped from his house at Village Kharibahar, Police Station Farsabahar, Distt. Jashpur, the appellant, who is nephew of the deceased and who ‘irx _A :&‘ g I/ x g“ ,1 V3 1 w ‘a \ 2 4vé Q k‘ 9 \‘x w“ )23 was having enmity on the ground of property dispute, stopped Kali Tirkey R§R§$51§g§ and assauited him with axe over head & other parts of the body. Purnima Tirkey (PW-5) — wife of Kali Tirkey and Bandhna (PW-12) — another nephew of Kali Tirkey‘ have seen the incident. When Purnima Tirkey (PW-5) came near Kali Tirkey, the appellant fled away from the spot. One Sadna — brother of Kali Tirkey made written report to the Principal of the school where Kali Tirkey was working, vide EXP-10, same was sent vide forwarding letters Exs.P-11 & P-12 to the Police < Station. Merg was recorded vide Ex.P-18. F.l.R. was lodged vide EX.P- 8. ‘fhe Officer left for the of Investigating scene of occurrence and after summoning the witnesses, inquest over the dead body of the deceased was prepared vide Ex.P—1. Spot map was prepared vide EXP-3. Dead C? body of the deceased was sent for autopsy to Primary Health Centre, Farsabahar. Dr. G.S. Paikra (PW-11) conducted autopsy vide EX.P-14 and found following injuries: - (1) Incised wound over temporal region of 2 1/2” x 1/2” x bone deep. (2) Incised wound over left part of hand of 2 1/2” x 1/2" x brain deep. ‘ (3) Incised wound over back of ear up to bone deep. (4) Incised wound over right hand of 1” x 1/2” x skin deep. injuries were ante-mortem. Skull was found cut and punctured. Mode of i e A , death was coma and death was homicidal in nature.“ 4. Luna of the deceased, slippers & one resin bag were recovered from the spot vide Ex.P-19. Blood stained & plain soil were recovered from the spot. Blood stained sari and petticoat of wife of the deceased Purnima Tirkey were seized. from,h§r vide Ex.P-17. Blood stained axe & clothes of the appellant were seized from the appellant vide Ex.P-16. Seized articles were sent for chemical examination vide Ex.P-2O and presence of blood on axe & clothes of the deceased was confirmed vide EXP—21. 3 5. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judiciai Magistrate First Class, Jashpur Nagar, who in turn, committed the case to the Court of Sessions, Raigarh, from where the Additional Sessions Judge, Jashpur Nagar, received the case on transfer for} trial. 6. In order to prove the guilt ofthe appellant, the prosecution has examined asj many as thirteen witnesses. The accused was examined under Sejction 313 of the Cr.PrC. in which he denied the circumstances w; appearing against him, pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. 8. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court. 9. Learned counsel for the appellant vehemently argued that enmity on account of property dispute between parties is admitted by the witnesses. As per the case of the prosecution, the offence took place on 30—7-90 at about 2 p.m., but instead of lodging the” F.I.R. immediately, v‘ the F.l.R. was lodged on second day i.e. on 31—7-90 that too in a peculiar manner i.e. brother of the deceased Sadna, who was supposed to know that who has caused the death of his brother (the deceased), has made application to (the Principal of the school where the deceased was ”working, vide Ex.P-1O that somebody has caused the death of his brother, thereafter, instead of lodging F.l.R. immediately, the Principal has prepared forwarding letters Exs.P—11 & P—12 and finally the said forwarding letters were sent to the Police Station on second day. This ‘ l l ‘i-x reveals that from 2 p.m. of 30-7-90 to 8.40 a.m. of 31-7—90 nobody was having knowledge that who has committed the murder of the deceased, but all of a sUdden, the statements of Purnima Tirkey (PW-5) & Bandhna (PW-12) were recorded by the police which reveal that they have seen the incident and they became eyewitnesses to the incident,which shows that they are highly interested witnesses and interested in conviction of the appellant. Their evidence requires close and minute scrutiny before relying on such evidence. 10.0n the other hand, learned State counsel opposed the appeal and submitted that although the fashion in which the F.l.R. has been lodged is not natural, but the fact remains that Purnima Tirkey (PW-5) — wife of the deceased & Bandhna (PW-12) ~ nephew of the deceasedhave seen the incident and they have categorically supported the case of the prosecution. Evidence of the aforesaid two witnesses are sufficient for conviction of the appeliant. 11.ln order to appreciate the arguments advanced on behalf of the parties, ' we have examined the evidence adduced on behalf of the prosecution. 12.ln the present case, homicidal death of deceased Kali Tirkey as a result of ante—mortem fatal injuries has not been substantially disputed by the appellant, otherwise also established by the evidence of Dr. G.S. Paikra (PW-11) & autopsy report Ex.P-14 which reveal that fatal injuries were found over head & brain of the deceased and death was homicidal in nature. 132As regards complicity of the appellant in the crime in question, conviction of the appellant is substantially based on the evidence of eyewitnesses Purnima Tirkey (PW—5) & Bandhna (PW-12). l \I t 1/ l \ l 14.Purnima Tirkey (PW-5) — wife of the deceased haerldeposed in her evidence that at the time of incident her husband after taking meals proceeded for school by his Luna moped, she heard the sound of Luna, but after some time, the sound was not there on which she came out of her‘house and saw that the appellant was assaulting her husband with axe, the appellant assaulted her husband twice. She rushed to the spot, herlhusband was agonizing, she caught hold of her husband, but her husband fell down. The appellant fled away from the spot. After some time, her husband died. Her clothes were also stained with blood. She shouted on which her sister-in—law (devrani) Lalita came. Her sister-in- law called her father-in-law & other persons. Sadna was not present in the Village and he came at about 3 p.m. to whom she told to inform in the school about the murder 0f her husband. She has further deposed that ' on the ground of land dispute, the appellant has earlier threatened her husbandand finally, he has killed her husband. Her evidence is corroborated by the evidence of Bandhna (PW-12). 15. Defence has cross-examined both the witnesses in detail, but they have stuck to their version relating to causing injury by the appellant to the deceased Kali Tirkey. Although there are some contradictions & omissions in their evidence and the statements recorded under Section .‘« G ; ht dp 161 of the Cr.P.C., but they are trifle in nature and there is no contradiction or commission relating to the fact that they have seen the incident and the appellant has assaulted deceased Kali Tirkey with axe. Evidence of these witnesses inspire confidence and their evidence are trustworthy. Although they/Kare relative witnesses, but their evidence cannot be'discarded only on the‘ground of their relation. Even othen/vise, relatives of the person are reluctant to spare real culprit and implicate falsely the innocent person. ln case of relative witness, only Ea @w V‘ minute scrutiny is required. We have minutely scrutinized the evidence of these two witnesses. Their evidence has been supported by the evidence of each others which inspire confidence and their evidence are trustworthy that the appellant has caused muitiple fatal injuries over the body of the deceased with axe. This shows the grave intehtion of the appellant of causing murder of the deceased. 16.After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant in manner V< mentioned above. Conviction of the appellant is based on credible, clinching and legal evidence sustainable under the law. The trial Court t has not committed any illegality in convicting the appellant. 17.For the foregoing reasons, the appeal is liable to be dismissed and it is hereby dismissed. The appellant is on bail, he'shall immediately surrender before the Additional Sessions Judge, Jashpur for serving the remaining sentence. Sd/— Sd/- . K . R.L. Jhanwar _ . T. P. Sharma Judge Judge