'•^'"-.-.w^. /<;<S? 5B-CT3S?&^° HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (InJai!) RESPONDENT: Criminal Aopeal No.648 of 2004 Shriram S/o Maniram Sahu, aged about 22 years, R/o Village Chanchi, Police Station Kasdol, Distt. Raipur Versus State of Chhattisgarh, through InchargePoiice Station Kasdol, Distt. Raipur (C.G.) {Criminal appeal under Section 374 (2) ofthe Code ofCriminal Procedure} Present: Mrs. Savita Tiwari, counsel for the appellant, Mr. Arun Sao, Govt. Advocate for the State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.L. Jhanwar, 33 ORAL 3UDGMENT (31-8-2010) T.P. Sharma, 3: - 1. Challenge in this appeal is to the judgrT:entofconviction & order of sentence dated 29-5-2004 oassed by the 1st Additional Sessions Judge, Baloda Bazaar in Sessions Trial No.369/2003, whereby & whereunder learned Additional Sessions Judge after holding the appellant guiltyfor commission of culpable homicide amounting to murder ofLokesh Sahu & Lalita and attempt to commit murder of Chhoti @ Sita & Sadhelal, convicted the appellant under Sections 302, 302, 307 & 307 of the I.P.C. and sentenced him to undergo' imprisonmentfor life & pay fine of Rs.1,000/-, in default of payment offineto further undergo R.I. for one year; to undergo imprisonment for life & pay fine of Rs.1,000/-, in default ofpaymentof-fine to further undergo R.I. for one year; to undergo R.I. for seven years& pay fineof Rs.500/-, in default of payment of fine to further undergo R.I. for one year; and to undergo R.I. for seven years & pay fine of Rs.500/-, in default of payment of fine to furtherundergo R.I. for one year, respectively. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has cohvicted & sentenced the appellant and thereby committed illegality. 3. Case ofthe prosecution,in brief, is that the appellant, deceased children Lokesh Sahu& Lalita, injured Sadhelal & Chhoti @ Sita, Banshiram and Firantin Bai were residing in same house in different rooms. At the time of incident, deceased Lokesh Sahy & Lalita, and injured Sadhelal were sleeping in verandah and other personsWere also sleeping in verandah and room. On the fateful day of 15-7- 2003 at about 5 a.m.; Munnalal (PW-4) — brother of the appellant woke up and wentfor ease with hiswife Firantin Bai andchildren were sleeping in the house. The appella.nt also woke up but refused to go for ease, he was present in the house, thereafter, he assaulted Lokesh& Lalita by axe and also Sita & Sadhelal by axe and caused fatal injuries resulting in death of Lokesh & Lalita and thereafter, he fled from the spot. Munnalal cameafter ease and saw the incident. Santosh Das Vaishnav (PW-1) went to the Police Station and lodged report vide Ex.P-1. Merg was recorded vide Ex.P-2. The Investigating Officer left for the scene of occurrence andseized blood stained and plain soil from the spot vide Exs.P-3, P-4, P-5 & P-6. ^31ood stained axe was found in the house and same wasseized vide Ex.P-7. After summoning the witnesses vide Ex.P-9, inquest over the deadbody of Lokesh, aged about 12 years, was prepared vide Ex.P-10. After summoning the witnesses vide Ex.P-lt, inquest over the dead body of Kum. Lalita, aged about 6 years, was prepared vide Ex.P-12. Dead body of Lokesh was sentfor autopsy to Government Hospital, Kasdol vide Ex.P-13 and autopsy was conducted by Dr. Y.K. Sharma (PW-11) vide Ex.P-13A who found following injuries: - (l)Incised woynd 3 y2" x 3/4" x skin deep oversternum bone. (2)Incised wound 1" x 1 c.m.x bone deep oyer chest. (3)Incised wouhd 3" x I 1/2"x t Vz" over mandible, internal organs were found cut. . (4)Incised wound 2"x1/2"xl 1/2", three in number,overneck, internal organs ofneckwere found cut. (5)Incised wound 3" x I" x 1 1/2"over neck, myscles were found cut.' . ' .' • " . (6)Indsed woundl"x 1/z c.m. x '/2 c.m. over leftshoulder. Cause of death was haemorrhageand death was homicidal in nature. D 'i 4. Deceased Lalita was firstlyexamined by doctorvide Ex.P-23 and autopsy was conducted after her death. Dead body of Kum. Lalita was alsosent forautopsy toGovernment Hospital, Kasdol vide Ex.P- 18and autopsy was conducted by Dr. Y.K. Sharma (PW-11) vide Ex.P-lSA who foundfollowing injuries: - (l)Incised wounct 3" x l"x brain deep. (2)Incised wound l"x 1 c.m. x y2"over left shoulder, left parietal' bone wasfound fractured and brain was damaged. Cause of death was shock as a result of injuries and death was homicidal innature. • 5. Injured Sita was examined by Dr. Y.K. Sharma (PW-11) vide Ex.P-22 and following injuries were found on her person: - (l)Incised wound 3:1/z" x l" x brain deep, fracture of parietal bone . was found. (2)Incised wound 3" x l"x muscle deep over left shoulder. (3)Incised wound l"x ^"x y2"overleft hand. (4)Incised wound 1" x 1/2" x skin deep over left scapular region. Injuries were fatal. 6. Injured Sadhelal was examined by Dr. Y.K. Sharma (RW-11) vide Ex.P-24 and following injuries were foynd on his person: - (l)Incised wound 1" x 1/2" x skin deep over occipital region. (2)Incised wound 3" x l"x l" over neck, muscles were found cyt. (3)Incised wound 1 1/2" x 1 c.m. x 1 c.m. over right parietal region. ,' (4)Incised wound 3" x 1/2" x l" over neck. (5)Incised wound 2 V?" x Vz" x l"over rightscapular region- (6)Iocised wound 1" x 1 c.m. x 1 c.m. over right hand. 7. Clothes of the deceased were seized vide Ex.P-15. Merg of Kum. Lalita was recorded vide Ex.P-16. Axe was examined vide Ex.P-25. Articles were sent for examination vide Ex.P-19 and presence of blood was confirmed on axe vide Ex.P-21. 8. Statements ofthe witnesses were recorded under Section 161 ofthe Cr.P.C. After completion of investigafion, charge sheet was filed before the Court of Judidal Magistrate First Class, Baloda Bazaar who committed the case to the Gourt of Sessions, Raipur from .where .-.—«A... learned Additional Sessions Judge receiyed the case on transfer for trial.: ' •• . . ! : 1 ' • ' ^ :: ~';' 9. In orderto prove the guiltof theappellant, the prosecution has examined as many aselevenwitnesses. The accused wasexamined urider Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him,pleaded innocenceand false implication. lO.After affDrding opportunity of hearing to the parties, learned -Additional Sessions Judge convicted & sentenced the appellant as aforementioned. ll.We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial Court, l2.Learned counsel for the appellant vehemently argued that. in the present case, conviction of the appellant is based on the evidenGe of child witnesses Geeta Kumari Sahu (PW-2), Anita Kumari (PW-3) & Sadhelal (PW-7) who have deposed that at the time of incident there was darkness and they were not in a position td identifythat as to who has caused injuries. Therefore/only on the basis of conjectures & syrmises, the trial Court has convicted & sentenced the appellant. 13.0n theother hand, learned State counsel opposed the appealand submitted that this is a case of brutal murder of fwo children and attemptto commit murder of twoother children by the uncle ofthe children. By examining eyewitnesses, the prosecution has proyed its case beyond all reasonable doubts. l4.In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 15.In the presentcase, homicidaldeath as a result of fatal injuries found over the bodies of children Lalita & Lokesh has not been substantially disputed on behalf Qfthe defence, otherwise also same is established by the evidence of Dr. Y.K. Sharma (PW-11) and autopsy reports Exs.P-13A & P-18A. Fatal injuries found over the bodies of Sadhelal& Chhoti @ Sita have also not been substantially disputed by the appellant, otherwise also same is established by the evidence of Dr. Y.K. 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Consequently, the appeal is dismiss Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ?*sy •a^ ^. 's' +!