•:3^ -f t; :®1 ^ ^3|^^' HLGHCOURTOFCHHATTISGARH AT BILASPUR DB: Hon'ble Shri Dhirendrajflishra^& Hon'ble Shri R.N. Chandrakar^JJ^ Criminal App'eal No. 636 of ,2005 Appellant Vs. Respondent Beko Chinga, s/o. Mukka Muriya, aged about 40 years, r/o. Village Perulpara, Gupdi, P.S. Gadiras, District South Bastar,, Dantewada (CG). <) ..f State. of Chhattisgarh through S.H.O., P.S. Gadiras, South Bastar, Dantewada, CG. Present: Ms. Sofia Khan, counsel for the appellant. Mr. U.N.S. Deo, Govt. Advocate forthe State '^ ^ ORALJUDGIVIENT (21.06.2010) 'The appellant has preferred this criminal appealunder Section 374(2) of the Code of Criminal Procedure against the judgmentof conviction and order of sentence dated 17-6-2005 passed in Session Trial Case No.67 of 2003, whereby learned Sessions Judge.South Bastar, D'antewda, after holding the appellant guilty under Section 302 of the Indian Penal Code for causing homicidal death of deceased Kalmumi Nanda, has convicted arfd <'; sentenced him to life imprisonment. The case of the prosecution, in brief, is that on 22-10-2000 at about 4.00 p.m. deceased Kalmumi Na'nda went to the house of the appellant to demand Rs.10/- from the accused appellant which was taken by the appellant as credit ;near the house of "% s €) accused /appellant Beko Chinga at Perulpara Gufdi. The accused appellant has refused to give the same and assaulted the deceased by knife and committed his murder. Report of the incident was lodged against the appellant by Kalmumi Hungi (PW/4),'wife of the deceased on 24-10-2000 at Police Station Gadiras. After registering the crime, police proceeded to the scene of ^fecurrenceand prepared inquest (Ex- P/16) over the person of the deceased in presence of witnesses. Thereafter, the dead body was sent for autopsy to Primary Health Centre, Gadiras vide Ex-P/6-A, where Dr. R.K. Nachanker (PW/7) conducted post mortem and gave his report (Ex-P/5). Sealed packet containing linen cloth of the deceased received from hospital was taken mto possession vide Ex.P/1. Blood stained knife was taken into possession on being produced by Beti ^ \evi^^ 'v( \B^T\ } Budhra vide Ex.P/4. 4=men cloth ^Lafl^elti) worn by deceased was sent for examination to the Doctor vide Ex.P/7. Similarly knife was seized vide Ex.P/4 and the same was also forwarded to the Doctor R.K. Nachankar (PW/7), who examined the knife and gave his opinion vide Ex.P/8). The Investigating Officer prepared the site map of the place of occurrence vide Ex.P/10. After completing the investigation, charge sheet was filed in the ^: Court of Judicial Magistrate First Class, Sukma, against the appellant, who in turn committed the case to'Vne Court of Sessions Judge, South Bastar, Danfewada for trial. Learned Sessions Judge framed charges under Section 302 of the Indian Penal Code against the appellant who abjured his guilt. ;\ 5. Prosecution inorder to establish the charges against the appellant examined 8 witnesses in all. Thereafter the statement of the ^\ accused was recorded under Section 313 of the Code of Criminal Procedure, in which be denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. 6. The trial Court after heariqg counsel for the respective parties, .•I, ' convicted and sentenced the appellant as mentioned in paragraph one of the judgment. 7. Homicidal death of deceased Kalmumi Nanda -is not in dispute. Even otherwise, from the evidence of PW-3 Beti Budhra who is an eye-witness of the incident and further from the evidence of Doctor R.K. Nachankar (PW/7), who conducted post mortem and gave his report vide Ex-P/5 in which he found the following injuries presenton the deceased and opined that the death was caused due to excessive concealed hemorrhage leading to cardiac failure as a result of injury over chest and the same is homicidal in nature, homicidat death of Kalmumi Nanda is established. INJURIES (i) Two incised wounds over right lung size 2.0x 1.5 cm and 2.0x 1.5 cm and depthA1.5 cm. (ii) Two incised wounds over the surface of left lung size 2.5 x 1.5 x 1.5 cm and 2.5x 1.5 x 1.5 cm (iii) Two incised wounds on left side of heart; one is over left ventricle size 2.5x 1.5 x 2.0 cm. One is over left auricle size 2.5 x 1.5 x2 cm, causing cardiac failure. -s, 8. Ms. Sofia Khan, learned counsel for the appellant vehemently argued that the conviction of the appellant is based on the \ evidence of Beti Budhra (PW/3) andKalmumi Hungi (PW/4). Kalmumi Hungi is not an eye-witness as on the date of incident she had gone to Gadiras market and she stayed at Jirampal on the night of incident where she was iqformed about the incident by Kadami Mada and Ido ,Bhima. The evidence of PW/3 Beti Budhra is not reliable as in the cross examination he categorically stated that it is correct to say that when he went to the house of the accused, he saw the dead body of Kulrrfumi Nanda lying on the threshing field of the appellant and the blood was oozing from his wound at that time. Itwas further argued that there is no recovery on the basis of memorandum of the appellant and the weapon of the offence was seized from Beti Budhra. The trial Court was not justified in placing implicit reliance on the evidence of Beti Budhra and Kulmumi Hungi and the benefit of doubt ought to have been extended to the appellant. 9. On the other hand, Shri U.N.S. Deo, Government Advocate, appearing on behalf of the State supported the impugned judgment. 10. We have heard learned coynsel for the parties. We have perused the records as also the impugned judgment. 11. PW/4 Kalmumi Hungi, wife of the deceased lodged the report on 24-10-2000. This witness hasadmitted in the first information report as well as in her deposition before the court that on the date of incident she had gone to market at Gadiras where she ..*iifi^iin! m ^V stayed on the night at Jirampal. She was informed about the incident on the very next day by Kadami Mada and Ido Bhima. \ She had lodged the report on the basis of information given by Beti Budhra (PW/3). . 12. Beti Budhra (PW/3) re.sides very close to the house of the appellant. He has deposed that Kalmumi Nanda was murdered by the appellant by knife. When he heard his cries "I am dead". ^i', He went to his house and saw the appellant assaulting him by knife. After seeing this, he returned from the house of the accused out of fear. Injuries caused by knife were present on stomach, chest and ribs. The deceased and the appellant both had consumed liquor and they quarreled with each other. The knife was lying in the house of the appellant. In the cross examination he has stated that his house is not fenced whereas the house of the appellant is fenced and the height of the fencing is equivalent to his height. When he went to the houseof the accused at that time, dead body of Kalmumi Nanda was lying in the appellant's threshing field and blood was oozing from his injuries. 13. On close examination of the evidence of this witness, we observe that he has categorically deposed in examination-in-chief that on hearing the cries of the deceased, he went to the house of the accused and saw the accused assaulting him by knife on his stomach, chest and ribs. The above T/ersion of this witness remains unchallenged as no suggestions have been put to this witness that he did not hear the cries of the deceased nor he r r^ ^ ^^t.1 went to the house of the accused and witnessed the incident. We are unable to accept the argument of the learned counsel for the \ . appellant that when the appellant went to the house of the deceased he could nqt see the incident and saw only the dead body of the deceased lying on the threshing field of the appellant. The version of this witness is corroborated in material particulars from the evidence of Doctpr R.K. Nachankar (PW/7) who has also found the corresponding multiple stab injuries on the person of the deceased described in the foregoing paragraphs. That apart, PW/4 Kalmumi Hungi has also deposed that Beti Budhra informed about the incident to her at Chinnipara and first information report lodged by the wife of the deceased on 24-10-2000 also names the appellant as the assailant. 14. On the basis of aforesaid discussion, we are of the opinion that the prosecution has proved the involvement of the appellant in the crime in question beyond reasonable doubt and the trial Court has not committed any illegality or infirmity in passing the order of conviction on the testimony of eye-witness Beti Budhra (PW/4) and the version ofthis witness is reliable and inspires confidence. 15. In the result, the appeal fails and the same is dismissed. Sd./- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge "^ Raju