HIGH‘COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.L. JHANWAR JJ. CRIMINAL APPEAL No. 235/ 2007 CRIMINAL APPEAL UNDER SECTION 374 [2) OF THE CRIMINA PROCEDURE CODE Present:— Mr. A.P. Sharma, Advocate for the appellant. Ms. Madhu Nisha Singh, P.L. for the State/respondent. ORAL-JUDGEMENT (Passed on 17/03/2011) The following iudgment of the Court was Dassed lgxi¢ T.P. Sharma, J:- l. Challenge in this appeal is to the judgment of conviction and order of sentence dated 17/9/2004 passed by Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja in Sessions Trial N0. 351/2003 whereby and where under after holding the appellant guilty for the commission of offence of culpable homicide amounting to murder of Bhagwati, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for APPELLANT Ramsakal alias Godma S / 0 Budhram, Age-22 years, Occupation Agriculture, R/o Village Jarhadeeh, Police Station ‘ Balrampur, District Surguja (C.G.) VERSUS RESPONDENT State of Chhattisgarh through Police Station Balrampur, District Surguja (C.G.) life and fine of Rs. 10,000/—, in default of payment of fine amount, additional rigorous imprisonment for 1 year. 2. Conviction is impugned on the ground that Without any iota of evidence sufficient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned a thereby committed an illegality. nd As per case of th prosecuton, fateful day 'of e i on 18/3/203 at about 9:00 .M. Bhagwati (since deceased) 0 P as sleeping in his Baranda along with his Wife PWIO Basmatiya, appellant is son—in-law of sister of Basmatiya who came with axe and caus repeated injuries ove‘the body of Bhagwati then Bhagwati died on‘the spot. She narrated the incident to PWI Ramprit, he went to th Police Station and lodge First Information Report Vie d d EX. P-. Investigating Officer left for scene f occurrence l o and after summning the witnesses Vie EX. —2, inques over the dead body of Bhwati s prepared Vide Ex. — ag wa P 3. Patwari prepared spot map vide Ex. P-4. Spot ma was , p also prepared Vide EX. P-7. Blood stained and plain soil were recovered from the spot Vide EX. P—8. Dead body of Bhagwati was sent for autopsy to Primary Health Center, Balrampur. PW4 Dr. P.L. Verma conducted autopsy Vide EX. P—lO and found following injuries:— (i) Incised wound over thigh of 12 X 2 1/2» c.m. x bone deep. w ed r e o d P t, V ii) Incised wound over thigh up to bone deep. ( Mode of death was syncope and death was homicidal in nature. During course of investigation, appellant was taken into custody, he made discloser statement of axe Vide EX. P— 11, same was recovered at his instance vide EX. P—12. Sealed cloths of deceased Bhagwati was seized vide EX. P- 13. Statements of the witnesses were recorded under Section 161 of the Code of‘Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Ramunjganj who in turn committed the case to the Court of Sessions, Ambikapur from where learned Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja has received the case on transfer for trial. In order to prove the guilt of the appellant prosecution examined as many as 13 Witnesses. Appellant was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication in crime in question is claimed. Appellant has also examined defence witness DWI Ramji Prasad Gupta who has deposed that on the date of incident, present appellant was not present in the village " and thereby he has taken the defence of alibi. After affording an opportunity of hearing to the parties learned Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja has convicted and sentenced the appellant as aforementioned. Mr. A.P. Sharma, Advocate for the appellant and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that evidence of solitary witness PWIO Basmatiya wife of deceased Bhagwati who is relative witness does ‘not inspire confidence, trustworthy and is not safe to rely, there may be a mistake in identity of appellant therefore, in absence of any corroboration from independent sources evidence of PWIO Basmatiya is not reliable. On the other hand, learned P.L. for the respondent/State opposed the appeal and argued that evidenceof PWIO Basmatiya, Wife of deceased Bhagwati who was present at the time of incident in same room inspire confidence, trustwérthy and same is safe to rely and sufficient for conviction of the appellant. In order to appreciate the argument advanced on behalf of the parties, we have examined the evidence adduced on behalf of the parties. WE 77,, In the present case, homicidal death as a result of fatal injury found over the body of deceased Bhagwati has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW4 Dr. P.L. Verma and autopsy report Ex. P— lO and death was homicidalin nature. In the present case, appellant has taken specific defence of alibi by examined the DWI Ramji Prasad Gupta who has deposed that in the month of February, 2004 he‘was working along with appellant as labour at Ambikapur. On 19th February he along with appellant left Ambikapur by Chhabra Bus at 3:00 P.M. and they reached their house situated at Jarhadeeh, Police Station Balrampur at about 9:00 P.M. On second day, he came to know that some body has been murdered at Village Omkarnagar.‘ In Para—4 of his cross—examination he has deposed that he did not knew that who has committed that murder of Bhagwati. He has admitted in Para-5 of his cross—examination that normally persons working in the places away from their residence use to return back to their residence on the festival of Holi, he has also admitted in Para—6 of his cross—examination that except him his other friends had already return to their house to celebrate the festival of Holi i.e. before Holi. These evidence reveal that when he \ return from Ambikapur at that time appellant was not with him. 14. As per evidence of PWIO Basmatiya, wife of deceased Bhagwati she was sleeping along with her husband in her Baranda, appellant came with axe and caused injuries over the legs of deceased Bhagwati then her husband agonizing thereafter he died. Defence has cross—examined this Witness at length, in her detail cross—examination she has deposed that appellant was a person who has caused repeated injuries to her husband and she has seen the appellant at the time of commission of such offence. Her evidence is well corroborated by the evidence of PWI Ramprit who has lodged First Information Report Ex. P—l and her evidence is also corroborated by the medical evidence which reveal that injuries were noticed on the legs of deceased Bhagwati As PWIO Basmatiya 1s relative Witness but her ev1dence cannot be discarded only on the ground of her relation on the other hand normally the relative of lost person to spare real culprit and to implicate falsely innocence but in case of enmity to secure the conviction relative are persons who implicates innocence. 15. Evidence of PWIO Basmatiya, Wife of deceased Bhagwati is inspire confidence, trustworthy and same is sufficien "for drawing definite conclusion that appellant has caused t injuries to deceased Bhagwati. After appreciating the evidence available on record learned Additional Sessions Judge (F.T.C.), Ramanujganj, Surguja has rightly convicted and sentenced the appellant as aforementioned. 16. On close scrutiny of the evidence, we do not find any illegality or infirmity in the conviction and sentence of the appellant. Consequently, criminal appeal is devoid of merits, same is liable to be dismissed and is hereby dismissed. Sd/— l Sd/_ V’ T.P Shanna l R.L. Jhanwar Judge l Judge