HIGH CQURT OF CHHATnS©ARHAT BIL^PUR A, Criminal ADpeat No.719 of 2001 APPELLANT: (In JaiQ RESPONDENT: Narendra alias Babloo Yadav Versus State of ChhatBsgarh JUDGMENT FORCONSIDERATION Judge MBHRAl HON'BI.E MR, JUSTICE R.N.CHANDRAKAR Sd'- R.N. GhaRdrakar Judge .i^ POSTiroRJUDCTflENT<)N<>?3eKyrOBER.2009 '^j itiC/2009; .'{. -l-;"^!- -tsT i'i ^;^Erra»sa it^sissite^ HIGH COURT OF CHHATTISGARH ATBILASPUR Criminat Appeal No.719 of 2001 APPELLANT: (In Jail) R£SPQNDEN_T: Present: Narendra aiias Babioo Yadav, S/o Rajdhari Singh, aged about 26 years, R/o Qr. No.546, Sindhiya Nagar, P.S. Mohan Nagar, District Duig, Present Harinagar, Durg (CG) Versus State of Chhattisgarh, Through P.8. Mohan Nagar, District: Durg Shri G.S. Shri counset for the appellant. Panel Lawyer for the State/respondent. DLvision Bench: Hon'bte Shn Dhirendra Mtshra & Hon'ble Shri R.N. Chandrakar, JJ. JUDGMENT --t^ (Delivered on^J October, 2009) 'he foilowing judgment of the Court was delivered by Dhirendra a,J. 1 This criminal appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure (for short 'the Code') against the judgment of convictton and order of sentence dated 1-8-2001 passed in S.T. No.112/99 whereby learned 2"" Additional Sessions Judge, Durg, has convicted the appellant under Sections 302 and 323 of the IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/- and to undergo R.l. for 6 months and to pay a fine of Rs.500/- respectiveiy. In default of payment of fine to further undergo additional R.l. for 1 month for every defauit of Rs.500/-. 2 The case of the prosecution, in brief, is that tnfomiation was received by the poilcs from Sector-9 Hospital, Bhilai Steel Piant that Jftendra j^as admitted in ICU in a critical condition. The police tried to record ' L^i-^^ ^ •^'^^,./ 'a'*£assS!S" r his dying deciaration; however, the deceased was not in a position to give statement. 3. On the report of PW-4 Vimla Singh Yadav, wife of the deceased, Dehati Natishi of Ex.-P/S was recorded under Section 307 of the IPC. She was sent for medical examination to Government Hospital, Durg, where Dr. R.N. Pandey examined her and gave his report of EX.-P/2. The admission & discharge ticket of Ex.-P/S and treatment papers (Ex.- P/8) of Jitendra were taken Into possession vide seizure memo of Ex.- Pn. The deceased died during treatment at about 7.05 on 18-9-98 in the hospltal. Inquest over his dead body was prepared vide Ex.-P/20. His body was sent for autopsy to the Govemment Hospftal, Durg vide Ex.-P/21 where Dr. R.N. Pandey conducted the postmortem and gave his report of Ex.-P/1. On the basis of Dehati Nalishi, First Information Report of Ex.-P/24 was drawn. On the basis of memorandum of appellant of Ex.-P/10, weapon of offence i.e. knife was taken into possession vide Ex.-P/l 1. Plain soil and blood stained soil was taken into possession from the place of incldent vide Ex\-P/13. Blood staiijed wearing apparels were taken into possession on being produced by the appe!lant vide Ex.-P/14. Blood stained wearing apparels of the deceased weretaken into possession vide Ex.-P/16. Knifeseized from the appellant was sent for medlcal examination to Dr. Ashok Kumar Raj for his opinion vide EX.-P/17. Nazri Naksha was got prepared by Halka Patwari Hemdas Sahu (PW-9) vlde Ex.-P/23. The arttoies seized during investigation were sent for chemical examination to the Forensic Science Laboratory and the report of FSL is Ex.-P/25. 4. After completing Investigation, charge sheet was filed against the appellant under Sections 302 and 323 of the IPC in the Court of Judiciai Magistrate 1 Class, Durg, who, in turn, committed the case to the Court of Se^ions Judge and the same was received on transfer for trial by leamed Additiona! Sessions Judge. 5. Learned trial Court framed the charge under Sections 302 and 323 of the IPC and Sections 25 & 27 of the Arms Act. The appellant abjured his auilt. 6. The prosecution examined 10 witnesses In all to establish ite case, thereafter statement of the accused was recorded in which he denied the circumstances appearing against him in the prosecution case and pteaded innocence and false imptication. From the record, it also appears that statement of PW-4 Vimla was recorded at the stage of defence at the instance of the appellant on 25-7-2001. 7 After hearing counsel for the respective parties, the trial Court convteted and sentenced the appellant as mentioned in paragraph-1 of Homicidal death of deceased Jitendra is not In dispute. Even otherwise, from the evidence of Smt. Vimla, who has witnessed the incident and further from the evidence of Dr. R.N. Pandey (PW-1), who hasconducted postmortem over the person of the deceased & found following injuries & opined the cause of death as shock and haemorrhage due to injuries on vita! area of the deceased & homicidal in nature & there is no evidence that injuries sustained by him wag self inflicted, it is established the death of the deceased was homicldat in nature. • One stitehed wound having 4 cotton stitch right lower third arm of r'length. • Stab injury on right. ingutnal area of size 3/4" x 1/2" x 4" obliquely ptaced on right pubic bone and right Temoral artery cut and right femoral vein also cut. Blood pooling in nearby surrounding area • Outer table of the right pubic bone cut corresponding to external No.2. 9. Leamed counsel for the appellant vehemently argued that conviction of the appellant is based on the evidence of Vimla (PW-4). From perusai of her evidence, it woutd be evident that in her cross-examination conducted on 25-7-2001, she has categoricaliy stated that she does not know as to who assaulted her husband, as she was unconscious. She did not see anybody assaulting. However, the trial Court only on 4 the basis of her examination-in-chief has held the appellant guilty of offence. He further argued that from the evidence of this witness, it would be evident that the appellant gaveonly one knlfe blow on non vital part i.e. thigh of the deceased, which unfortunately struck his pubic bone and his testicles resuiting in his death. He immediately carried the deceased to the hospital for treatment. Thus, from the conduct of theappeliant, it would be evident that he had no intention 61- knowledge that the injuries which he was causing on the person of hls brother would cause his death and the offence does not travel beyond Section 304 Part-tl of the IPC. The incident occurred due to sudden quarrel under fit of rage without premeditation. io. On the other hand, iearned counsel for the State supported the judgment of the triai Court. 11. We have heard leamed counsel for the parties. We have gone through the judgment of the trial Court as also the evidence available on record. 12. The trial Court reiying upon the solitary testimony of PW-4 Vimla and other attending circumstances held that on the date of the incident the appellant caused injuries over genltal organ of the deceased as a result the deceased died on 18-9-98 at 7 pm and he also caused voluntary hurt to Vimla and convicted the appeilant as mentioned in para-1 of the judgment. 13. Initially the evidence ofVimla (PW-4) was recorded on 27-3-2000. She has deposed that she resided with her husband Jitendra, appellant and sister-in-iaw Mamsta. Her brother-in-!aw Ram Prakash came from viliage 2-4 days back. On the date of incident, she was present in the home and was resting at 4 pm. Her husband woke her up. She saw that the appellant was holding a big knife, he assaulted her husband near his thigh on his private parts. When she shouted and tried to intervene, he also threatened her and slapped her Tace and pushed her. He asked her to wipe out btood from the floor. He took her husband to the hospltat by a tempo and threatened her against shouting. The appellant and his 2 friends took her husband to the hospital on tempo. She informed the police about the incident on the same day whereupon Dehati Nalishi of Ex.P/5 was recorded. !n her cross-examination, she has denied any compromise with the appeilant and she has stuck to her examination-in-chief. In para-16, she has admitted that there was property related dispute between the appeliant and the deceased. She has also denied any knowiedge that her deceased husband was prosecuted for offence under Section 302 of the IPC for murdering his wife, though she has admitted that the deceased married her after the death of his first wife. She has denied the suggestion that her husband himself inflicted Injury by knife due to mental tension. l4.This witness was again examined on 25-7-2001 at the stage of ctefence. However, on her re-examination, she resiied from her eartier evidence before the Court and stated that she does not know as to who assauited her husband as she was unconscious at that time. She also deposed that she does not remember as to what she has stated in her earlier depositlon. On re-examination by the Additlonal Public Prosecutor, she has deposed that she is residing with her Devar at present. When she gave deposition earller, at that time she was residing separately and now the household expenses are belng borne by her Devar. 15. PW-2 Dharmendra Kumar Sharma has taken the deceased to the hosp'rtal with the appellant. He has not supported the prosecutlon case and he has been declared hostile. Mamita Yadav (PW-3), sister of the deceased, has turned hostile. She has been cross-examined by the prosecution, but no incriminating evidence couM be extracted on her cross-examination also. 16. Dr; Ashok Kumar (PW-6) was on emergency dutywhen the deceased was admitted in the hosplfal by the appellant. He has deposed that Narendra informed him that someone has assaulted Jitendra by a sharp edged weapon. He was in serious and semi conscious condition. This witness has proved admission card of Ex.-P/S. 17. Raju Sahu (PW-7) has proved memorandum of the appellant of Ex.- P/10 and seizure of knife in pureuance thereof vide Ex.-P/11. However, in cross-examination, he has stated that he signed 5-6 papers together in the poiice station and he does not know as to what was written therein. 18. V.P. Banjare (PW-8), Sub Inspector and 1.0., has conducted the entire. investigation. He has proved the entire prosecution documents, memorandum and seizure of knife on the basis of memorandum of the appellant and other seizure memos. 19. In the instant case, evidence of RW-4 Vimla was initially recorded on 27-3-2000 the contents of which we have already reproduced in the foregoing paragraphs. It appears that thls witness was again examined when she was produced as defence witness at the stag®of defence on 25-7-2001 i.e. almost after 1 year and 4 months of her earlier examination. However, this time she resiled from her earlier evidence and deposed that she did not see the incident as she was unconscious and she could not see the assailant. On her re- examination by the Addrtional Public Prosecutor, she admitted that she was now residing with Devar (appellant) whereas, when she was earlier examined, she was residing separately and the household expenses were being borne by her Devar. 20. From the aforesaid circumstances, the triat Court has rightly inferred that when she was subsequently examined, she was under the influence of the appeltant and, therefore, that is not retiable. From the record, we also observe that this witness was re-examined at the defence stage despite objection of the Additional Public Prosecutor In this regard. Looking to the facts and circumstances of the case and considering that she was examined after almost 16 months for the second time, we are of the opinion that the trial Court has rightiy ignored her subsequent evidence as untrustworthy and unreliabte and held the appellant responsible for stabblng his brother Jitendra and causinghis death. _y.. ' .'^-^.'.•A'.;'?:^ 7 21. However, taking into consideration that the appellant gave a single knife blow over thigh of the deceased which unfortunately struck on his testicles and also damaged right pubfc bone, right femora! artery and veins and after inflicting the aforesaid injuries, he himself carried the deceased to Sector-9 Hospital Tor treatment, we are of the opinion that the trial Court was not justified in convicting the appeltant under Section 302 of the IPC, as considering overall evidence available on record, intention cannot be attributed to the appellant of causing death of his own brother Jltendra and offence, according to our opinion, does nottravel beyond Section 304 Part-11 ofthe IPC. 22. In the result, the appeal is partly allowed. Conviction of the appejlant under Section 302 of the IPC and sentence imposed under that section are setaside, however, heis convicted under Section 304 Part-11 ofthe IPC instead. Conviction and sentence imposed under Section 323 of the IPC are maintained. 23. It is stated that the appellant is in custody from the date of judgment i.e. 1-8-2001 and as such, has already compteted more than 8 years and 2 months in jail. In the aforesaid circumstances, we sentence the appellant for a period already undergone by him. The appeilant beset at liberty forthwith if not required in any other case. an/e RJO}. GhaRtirakar