37T^'^T R^ich ^TT sn^T sh^lJcb Tc^r ^iqi<^^, ^^^(0, (s)0i'y^< w^r a^..^..A...^o...^.^..............,^ 200^ 3n^?r ^ra? (4?<^<i?) '^RITW^f^T 3TT^?T APPELLANT: (JaiS custody) V4rsus- RESPONDENT: (Criminal Appeal und^r Divlsion Bench: - Hon'ble Shri L.C. Bhadoo& Hon'ble Shri Suni! Kumar Sjnfla, JJ= 28-9-2007:- Shri V.P. Gupta, Advocat<t Shri D.K. Gwalre, Addil respondent. Ora! judgment dictated or| Sunil Kumar Sinha. J. This appeal is directed a^ainst ofsentence dated 10-1-2002 pa< Jagdalpur, in S.T. No.142/2001, convicted under Section 302 imprisonment for life and to pay fine to further undergo R.I. for 6 ^nonths. cbl^fd^l^ *iH<viY ^1^t <F3i^i< ^ ^iRpT 3FTT^[ Budh Ram, son of Somaru Ram, aged 25 years, resident of village Bhatpal, Alerpara, P.S. Barsoor, Distt. Dantewara, Chhattisgarh. State of Chhattisgarh, Through P.S. Barsoor, Distt. Dantewara, Chhattisgarh. Section 374 (2) of the Cr.P.C.) for the appellant. ;iona! Public Prosecutor for the State/ Dafe. ;thejudgment of conviction and order ^sed by the 4 Additiona! Sessjons Judge, |whereby the accused/appellant has been ^f the I.P.C. and sentenced to undergo ^ fine of Rs.500/-, in default of payment of 3^5T ^||<4|<?!><4, ^xHy<l^, (s«y'>l<rl^< TOTRTT tb^lcb^ .^,^..^.....v.^..............^ 2004 371^?T ?FT'f^lT^ ^TSH 'STT^T $h^lcft an^r^ra? C^^^) ^RiTw^r^n^r cbl^id^'1 'RTO^f ^f^t <^l^i< ^3TRm311^T The brief facts are that the deceased namely, Baldev was the father-in-taw of accused/appeil4nt Budh Ram. In the intervening night of 7th/8th January. 2001. the ac^ deceased and two small childl ;used was present in the house of the ren of the deceased namely, Ku. Rumal (PW-1) daughter of the deceas^d and Balram (PW-6) son ofthe deceased were also there. The case of the prosecu^ came to the room where the de son and daughter to go from tl crowbar he attacked over ion is that at about 1.00 a.m. the accused peased was sleeping and said to both his piace and thereafter with the help of a deceased, which resulted into his ^ent was witnessed by two eyewitnesses :h|atp! lie c instantaneous death. The incicf i.e. both the children ofthe dece^sed. After the inddent Ku. Rumal (PW» 1) disdosed the story to Jaggu|(RA/-2), who is brother of the deceased and who was residing in a differ^nt house. After receiving the information, deceased and saw the dead body. he went to the house of th^ Thereafter, he along with Kotwar] house of Budh Ram. Budh Ram| found jn the village. He was ca^ the Panchayat, he admjtted t! deceased, he had attacked over effect was lodged by Jaggu (RA^ Sarpanch and other villagers went to the was not present in the house, but he was ^ght and a Panchayat was convened. In ^iat after giving Sulphi (liquor) to the |iim by a crow bar. A report Ex.P/1 to this 1-2). On the said report, the investigating officer left for the scene of occutrence, after giving notice Ex.P/13 to the Panchas, he prepared inquest or^ the body of the deceased vide Ex.P/12. After taking the accused/app^llant into custody, he recorded his memorandum Ex.P/2 in which h<d basis of such disclosure crowb made disclosure about crowbar. On the ar was seized at the instance of the ^T 3^T ^FT R'lich ^T^n 3i1^T st)^Jcb ^^- 3'^'^l^lc')^, ^•<{l'(H<l(o, fsf^l^y ^^ ^^,.G=».^.,. ..-..-\.^.............^ ^^ 3H^?T XpRR (4C(^<ST) ^prTW^f^^n^r accused/appellant under Ex.P/{ sent for postmortem examinat| The postmortem examination who prepared his report Ex.P/^ Another site plan was preparecj ofthe deceased were seized soil were seized under Ex.P/41 examination to the Forensic Sci^ The dead body of the deceased was )n to the MPHC, Barsoor under Ex.P/9. ^as conducted by Dr. P.S. Komre (PW-7), Site plan was prepared under Ex.P/15. by the SHO under Ex.P/18. The clothes uijider Ex.P/11. The blood stained and plain Seized articles were sent for chemical snce Laboratory, Raipur under Ex.P/16. After completion of usu^ the Court of Chief Judicial Magj the case to the Court of Sessiorl was received on transfer by the| who conducted the trial accused/appellant as aforement The conviction and sent^ testimony of two eyewitnesses| (RW-6). Learned counsel for the of the deceased namely, Balde^ Ku. Rumal (RA/-1) and Balram| seen that their father namely, his head with the hefp of a cro^ namely, Jaggu (RA/-2), who lod^ eyewitnesses as also Jaggu in of the deceased is supported bj chl^fd^il'1 TTO^f ^F,fe^ <RI^K '^3tfHH3?n^T investigation, charge sheet was filed in strate, Dantewada, who jn turn committed ^s Judge, Jagdalpur (Bastar) from where jt 14th Additiona! Sessions Judge, Jagdalpur, |and convicted and sentenced the loned. ^nce of the appellant are based upon the namely, Ku. Rumal (PW-1) and Balram |ippellant has not disputed homicidal death Moreover, it comes in the evidence of |(PW-6) that in the fateful night they had ^aldev was assaulted by the appellant on |vbar. They disclosed story to their uncle |ed FIR. The evidence given by these two ^elation to receivjng injuries on the person the medical evidence of Dr. P.S. Komre 3TI^T ?FT f<rlJch TTSH 3TI^T 'grqfsF 3:S£T??rRT^T, ^Tfl'y4!^, {sf<7'>l^^< y; w^r g^...C-f...ft...^.0...l.&.^................^ 2,,^ 3^?T'q^W ( 4C<^<^) '^nw^rf^ 3^n^T (RA/-7), who prepared postmort^m that cause of death was due to on head. He has mentioned th^t the death was homicidal. Therdfore. of Ku. Rumal (PW-1) and Balrarfi Komre, it is established that death nature. report Ex.P/6 in which he gave opinion ^fiassive haemorrhage as a result of injury injury was fatal in nature and nature of ^, in view of the above ocular evidence (PW^i) and medical evidence of Dr. P.S. of the deceased was homicidal in So far as involvement counse! for the appellant argue|j are unreliabie. He stated that son and daughter of the decea|sed, they shoujd not be relied upon. had gone out ofthe room, ther^fore have seen the actual occurrenc^ To appreciate the argum^nt accused/appellant, we have per^ So far as question of r^liab falling in close relation is concer^ed of the eyewitness who falls in ci{ be true and reliable, the witne^ ground that he or she happens prosecution, as the ease may evidence has to be scrutinized line, evidence of child witness and caution. If such evidence o1 chl^ld^l'1 H\^ ^f.fe^ <FS|<^I< ^ 3ifip:r ^ii^r |of the appeilant is concerned, learned that evidence of both the eyewitnesses ^hey are the child witnesses and they are I, therefore, looking to their evidence, His submission is that they themselves ^, there is possibility that they may not committed on the said date. advanced by learned counsel for the sed evidence ofthesetwo eyewitnesses. ^ljability of child witness as also witness }, the law is well settled. If the version {)se relation with the deceased appears to |s will not be disbelieved merely on the i|o be close relative of the deceased or the However, the guideline is that his/her great care and caution. On the same |as a!so to be scrutinized with great care witness who happens to be child witness b|e. vl/ith 3?n^i ^ f<^ich 'cT^T ^TT^T $h^i<=h 'S^^S •^1^10^1, ^TH-M'Ko, (s)<yl>l'<r)^< TTTO^T WTO ...C^^.^A......\...^............^ 200^ 3ir^?r ^ra? (TI^1?^) '^nw^ft^ 3?n^r inspire confidence of the Court, evidence of such witness. <^f attacked ofl her sl^eping brottter here) and If we look into evidence she knows the accused/appe| deceased was her father. Sh< evidence that her father was he!p of a crowbar. in para-2 fateful night they all were sleepii| andthe deceased. She was appellant said her and her that they should not remain went towards the kitchen gardeh that the appei!ant brought a cro\ father by the said crowbar. He | She has specifically stated that| the p!ace of the incident wher^ deariy visible. She has further father the accused ran away further deposed that at that time| has also seen the occurrence. she went to the room where her head of her father. Blood was she went to her aunt namely, story to them. They also came has died. Vide para-4, she has <=M^f<vl<I1l 'HP^Jf ^f^^t <P»l^l< '^^rRm^n^T then conviction can well be based upon Ku. Rumal (PW-1), she has stated that lant who is her brother-in-law. The has clearly deposed in para-1 of her by the accused/appellant with the evidence, she has stated that in the ig in their house along with the appellant along with her father Baldev. The to go away from that place. He said they shou!d go away, on which they and from the kitehen garden she saw ^vbar and he attacked on the head of her |had attacked on his head for two times. |from the place where she was standing r^ the accused attacked her father^was ^eposed that after causing injuries to her fr|om the place of occurrence. She has |Balram (PW-6) was also with her and he |She has further deposed that thereafter father was lying. She saw injuries on the ^oming out from the jnjuries. Thereafter, Ramvati and uncle Sukhdev and told the 1p their house, but by that time her father <peposed that thereafter the appellant was ^T^T^ f<Tl[ch ^SH 3H^T $h<4ich \^ ^uSf ^l^ll^, ^TO^^Ko, (s|<r'>l^^< WCT ^^....^.4..^.0..l.&5...............^ ^^ 3nit?r T^ra? (4C<^<^) '^nw^if^ ^TI^T caught by the villagers and he villagers that he had killed her fa ^as hihi :froh Balram (PW-6) has also| deposed that the appellant hac| para-2, he has deposed that in the house. The accused/appell^nt the accused/appeliant said to the room, on which they went Badi that the accused/appellant deposed that he had seen inju|-ies father. He has further deposed to the house of their unde them. On enquiry, they had visi1|ed has died. In para-4, he has the village and the accused wa^ asked^on which he admitted tha| of a crowbar. Though, lengthy cross-e^ have been done, but defencel circumstance which may discrec|it They have denied suggestion gi| not seen occurrence and when was lying there. In cro3s-examit|iation their distance has been asked present at a distance of about 1C| cM<<(<n<I1i 'W^if ^fel^t iPt^K '^3iRpcT3;n^r asked by them, on which he told the :her with a crowbar. [deposed in the same fashion. He has attacked his father with a crowbar. !n |:he fateful night they al! were sleeping in was also present there. In the night, and his sister that they should go from the room towards Badi. They saw from ^ttacked over head of thelr father. He has on the right side of the head of his fhat after that he and his sister both went and Sukhdev and narrated the story to 1|ed their house and by that time his father that a Panchayat was convened in also brought in the Panchayat. He was he has attacked his father with the help Jag^u dej^osed ^aminations of these two eyewitnesses has not been able to elicit any such testimonies of these two eyewitnesses. i|^en by the defence that in fact, they had t|iey entered the room, they saw that body of Balram (PW-6) a question about |on which he has deposed that he was steps from the place of occurrence. This 3^T ?FT f^^i<=h TfSH 3fln^T sb^i<=b I • • TC^ r^l-qlO^, ^ITfl'y^Ko, (s)01^^< ^IWIT y^i;-^:-^^-W^-----^ 200^ 3^?r-q^? (^lc<<^) '^ITW^?[ 3i11^T suggests that he and his distance of about 10 steps. Even otherwise alsc|, witnesses, there is no mater|al similar type of evidence has in which two eyewitnesses h^ there i's no reason to disbeliel Apart from the above) extra judidal confession. Th^ made by these two eyewitne^ and he was brought before tt extrajudicial confession that| The factum of extra judicial Ku. Rumal (R/V-1) and Balra^ evidence of PW-2 Jaggu, PVy "--^ R/V-2 Jaggu has d^ convened in the village. Kot^ present in the Panchayat. Tt in the Panchayat on which| assaurting the deceased with| evidence has also deposed deposed in para-3 that he accused was also present in he had admitted that he a^ crowbar. Almost all the witn^ chl^fd^l'1 'HFI^f ^f.fe^ <Rn^K ^3?tRR3Fn^r ster both had seen the occurrence from a if we compare evidence of these two contradiction in their evidence and almost •een given by them. Therefore, this is a case ive corroborated evidence of each other and re testimony of these two eyewitnesses. ocular evidence, second set of evidence is case of the prosecution is that on disclosure ses the appe!!ant was caught by the villagers iem. In presence of many villagers he made he has committed murder of the deceased. ^onfession is established on the evidence of (PW»6)and it js further corroborated by the -3 Sukhdev and PW-4 Chetan. tposed in para-2 that a Panchayat was ^r, Sarpanch and many other villagers were |ie vilJagers had asked the accused/appellant he made extra judicial confession about a crowbar. PW-3 Sukhdev in para-2 of his |jn similar fashion. RA/-4 Chetan has also j^as also present in the Panchayat. The (he Panchayat. On asking from the accused ^saulted the deceased with the help of a ^sses have stated that after such disclosure r 31T^[ ?FT Rr11<=h "TOT <3TT^T $t)^i<=n Bar\/e 3^ET ^)|A||^, ^y^l^, Id^l^y ^MT ^^.......^A.-^....^ an^jT xpra? (^cii^^) ^ 200^ ^^aiw^n made by Ku. Rumaj (PW-1J cbl^fd^l'11RTT^ff ^f,fe^ <fa^l< ^siRw^n^T and Balram (PW^), after convening the Panchayat and after extra jutjicial confession made by the accused, first jnformation report was lodgeld. If we look into the contents of the FIR lodged by Jaggu (PW-2), mentioned therein. It has be|en mentioned jn the FIR that fact regarding it would appear that all these facts are commission of murder was d| Ku. Rumal (PW-1). Jt has a|; village Panchayat. the accus^ the villagers. Therefore, apar^ we have he!d to be reliable, th| confession made by the accus) In the jjght of above ^ counsel for the accused/appel| versions of two child witnessj sciosed by one of the eyewitnesses namely |so been mentioned in the FIR that in the |d has made extra judiciaj confession before from evidence of these eyewitnesses which |ere is an additional evidence of extra judicial |ed Jn the village Panchayat. |jscussion, argument advanced by learned |ant does not appear to be acceptabJe. The ^s namely, Ku. Rumal (RA/-1) and Balram (RW-6) are fully reliable and ^ependable. Apart from that, there is extra judicial confession of the acci|sed/appellant. The conviction based upon such evidence cannot be s^id to be illegal or unsustainable. The conviction is based upon cogeht, cljnching and retiable evidence available on record, which does not reqi| In the result, the app^ dlsmjssed and it is hereby disrr Sd/- L.C. Bhadoo Judge ire any interference by thjs Court. al being devoid of merit, is (iable to be issed. Sd/- Sunil Kumar Sinha Judge