HJGH CQURT OF GHHATTiSGARH AT BILASPUR DB: Hon\bleShrLDhirendraMshra& Hon'bSe Shrs R.N. Chandrakar. JJ. Appejlant Criminal Appeal No. 82^1994 Bhola, S/o. Raghunath Panka, Aged 35 years, resident of Asola, Police Station Ambikapur, District Surguja (Madhya Pradesh) Vs. Respondent State of Madhya Pradesh Present: Shri F.S. Khare, counsel for the appellant. Shri Ashish Shuk!a, Govt. Advocate for the State ORAL JUDGMENT (14.06.2010) The appeliant has preferred this criminai appeal under Section 374(2) of the Code of Griminat Procedure against the judgment of conviction and order of sentence dated 3rd December 1993 passed in Session Trial Case No.96/92, whereby learned sessions judge, Ambikapur, District Surguja, after hoiding the appeilant guilty under Section 302 of the Indian Penal Code for causing homicidal death of deceased Sukhamania, has convicted and sentenced him to life imprisonment. Briefly stated facts of the case, as projected in the charge sheet, are that the appeilant is nephew of the deceased. He fell sick five to six days before the date the incident. He suspected that on account of his aunt Sukhmania's witchcraft, he is sick and on account of this suspicion, he assaulted the deceased with an axe on her head on 22.11.1991 at about 10.00 a.m. Hirmaniya (PW/4), grant daughter of deceased Sukhmania, witnessed the incident. Bhaiyadas (RA//2), Nankudas (PW/3) caught hoid of the appeliant while he was fleeing away from the spot with the weapon of offence. Thereafter they went to the place of incjdent, saw injured Sukhmania iying in her courtyard, who iater died. Report of the incident was lodged against the appeilant by Bhaiyadas (PW/2). After registering the crime, poiice proceeded to the scene of occurrence and prepared inquest (Ex-P/7) over the person of the deceased in presence of witnesses. The dead body was sent for autopsy to Govemment Hospital, Ambikapur under Ex-P/9, where Dr. M.K. Jaiswaf (PW/10) conducted post mortem and gave his report (Ex-P/8). Weapon of offence, axe wos taken into possession from the appeliant vide Ex-P/3 on the basis of his disclosure statement of Ex-P/12. The weapon seized from the appeilant was sent for examination to Dr. M.K. Jaiswal. He examined the axe and gave his report wide Ex-P/10. Investigating Officer, Asagar Aii (RA//13) prepared the site plan of Ex-P/13. After compteting the investigation, charge sheet was filed in the Court of Chief Judicial Magistrate, Ambikapur against the appeliant, who in turn committed the case to the Court of Sessions Judge, Ambikapur for trial, Learned Sessions Judge framed charges under Section 302 of the Indian Penal Cod©against the appeliant who abjured his guilty. Prosecution in order to esteblish the charges against the appeiiant examined 13 witnesses in ali, thereafter stetement of accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstences appearing against him in the prosecution case and pleaded innocence and false implication. The triai Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one of the judgment. 8. ^ 9. Homicidal death of deceased Sukhmania is not in dispute. Even otherwise, on the basis of evidence of PW-4, who has witnessed the incident and the evidence of Dr. M.K. Jaiswai, who conducted the post mortem & proved his report Ex-P/9 in which he found the foilowing injuries present on the deceased and opined that the deceased died as a result of shock due to fracture of skuil bone and injury of brain tissues of the deceased and that the injury sustained by the deceased is sufficient for death in ordinary course of nature, the homicidal cjeath of the deceased is established. INJURIES (1) One incised wound about 3" bone deep upto brain over right frontal region extending from right upper eyelid up to above hair line semicircular in shape, clotted biood present, brain matter coming out. (2) Incised wound about 3" iong bone extending right ear in right temporai region, clotted blood present. Shri F.S. Khare, learned counsel for the appellant vehemently argued that ihe conviction of the appellant is based on the testimony of child witness Hirmaniya, aged about 5 years, as there is no other eye witness of the incident. Presence of Hlrmaniya at the place of incident is doubtfu! as other witnesses nameiy, Singari (PW/6) and Sundari (PW/7) have categoricaily stated that at the time of incident Hirmaniya was piaying in their house and she rushed to the piace of incident after they came to know about the incident. This aspect has not been teken into consideration by the trial Court. Other witnesses who were present in the house have not been examined and in these circumstances, adverse inference ought to have been drawn against the prosecution. On the other hand, Shri Ashish Shukla, Government Advocate, appearing on behalf of State argued that report was lodged against the appeiiant 4 immediately after the incident by Bhaiyadas (PW-2). The appeifant was apprehended by the witnesses from near the piace of incident while he was running with weapon of offence and the weapon of offence axe was recovered at the instance of the appeliant and the same was stained with blood. That apart, the version of the child eye witnesses, inspires confidence. The defence has not been abie to demolish the veracity of the evidence of the eye witness in her cross-examination and her version cannot be discarded only on the ground that she is a child witness. Her versson is also corroborated from the medical evidence as corresponding injuries have been found on the head of the deceased. Other witnesses namely, Bhaiyadas and Nankudas aiso corroborate the version of Hirmaniya. 10. We have heard learned counsel for the parties. We have perused the records as atso the impugned judgment. 11. Bhaiyadas (PW/2) has lodged the report of the inddent on the same day and has proved the same in his deposition before the Court. He has deposed that the deceased was his sister-in-law andshe was a widow. She resides with her son and daughter-in-law. She was murdered in the broad day iight. Before going to the piace of incident, he had seen the appeliant running in the gali. He apprehended him with the help of Nanku. He was also having axe. Bhola was running fever since last 5 to 7 days and he was behaving like mad. He has further stated that the axe whteh he was hoiding was stained with blood. He further deposed that he took the appeilant with his axe to poiice station with the help of Nankuand lodged report (Ex-P/2) against the appeilant. He further deposed that appeiiant's brother Nanku toid him that the appellant assaulted Sukhmaniya. He has also proved the seizure of axe from the appeilant as weil as the inquest report and other seizure effected during the investigation. In the cross- examination, he has admitted that he himself has not seen the appeliant assaulting the deceased and he does not know as to why the appeiiant murdered the deceased, though he had admitted that viliagers suspect that Sukhmaniya practices witohcraft. 12. Nankudas (PW/3) is real brother of the appellant. He has also deposed that the report was lodged by Bhaiyadas in his presence in the police station and he saw Bhaiyadas was trying to apprehend the appeilant and he could apprehend him only with his assistance. At that time the appeliant was hoiding the axe. The evidence of this witness is in similar lines as that of Bhaiyadas. 13. Hirmaniya (R/V/4), aged about 5 yeare, is a chiid witness. After putting her preliminary questions, her evidence has been recorded without administrating her oath. Hirmaniya has deposed that Sukhmaniya was her grandmother and she resided with Sukhmania, at the time of her death in the broad day !ight, she was present in the courtyard, where she was playing. Bhola came to the place where she was playing and assaulted Sukhmania with axe on her fore-head. She run away from the place of incident after the first assauit for the house of one Jamadhin, who is her aunt, therefore, she did not see the second assault. The house of Nanku, younger brother 6f appeliant Bhola is just in front of the house of Sukhmania. Witness Bhaiyadas was present at the time of the incident, when she was running towards her aunt's house. This witness has been cross-examined by the defence in detail, however, the defence has not been abie to impeach the credibiiity of the witness in her detaiied cross examination and she has stuck to her ciaim in her examination in chief. She has stoutiy denied that she has deposed as tutored by her Baba & she did ^ ' notsee anything. Phuiwant (PW/5) has aiso deposed that he had gone to see the dead body and at that time dead body was iying in the courtyard and she sustained injury on her head. He has further stated that the appellantwas stending near the dead body and he confessed that he assauited Sukhmania on the spot. He has also stated that he was summoned by the police on the p!ace of incident. 14. Singari (PW/6), sister-in-Jaw of deceased Sukhmansa and Sundari (PW/7) niece of Sukhmania have atso deposed that the appeilant was apprehended by his brother Nanku and Bhaiyadas after the incident. Sundari in paragraph 7 of her cross examinatson deposed that Hirmaniya (PW/4) was playing in her house at the tlme of incident, however, she has deposed that Hirmaniya reached the place of incident before her and she went there after her. 15. Sampati (PW/8) is the son-in-law of deceased. After the incident Sundari (PW/7) informed him that Bhota has murdered Sukhmania. 16. On close scrutiny of evidence available on record, it is manifestiy clear ttiat eye-witness Hirmania who resides with the deceased was present at the time of the incident and she saw the appellant giving an axe blow over the fore-head of the deceased, whiie she was piaying in the courtyard. She ieft the place of incident thereafter. Her version is duly corroborated by the medical evidence of Dr. M.K. Jaiswal, who has found incised iniury over the fore-head ofthe deceased in her post-mortem report (Ex.P/9). The fact that the appellant was apprehended from near the place of incident with an axe, immediateiy after the inddent, supports the version of Hirmania and her version is further corroborated by first information report duiy proved by Bhaiyadas (PW/2) as also Nankudas (PW/3) in whose presence the report was iodged by Bhaiyadas. 17. 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 reasonabie doubt and the trial Court has not committed iilegatity or infirmity in passing the order of conviction oh the testimony of eye-witness Hirmaniya. 18. in the result, the appeai faiis and the same is dismissed. Theappellant is on baii. His bait bonds are cancelied. He is directed to surrender before the trial Court to sen/e the sentence imposed upon him. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Bini