WW (W) WM§WW émi‘maméw WWW HIGH COURT 9 ‘ CHHATTISGAm-l BILASPUR Crimina Appeal No.2860l 1999 i i APPELLANTS i Vijay, aged about 2'7 years son of Shli Tikaram Kaushik l > ¥ ‘ u f 2 Santoshi Bai, aged 28 years w[ o 1 Devnaruian Kaushik Both residents of Gram Bundela, Thana— Chakarbhata, Distn'ct Bilaspur(CG) versus RESPONDEET State of Madhya Pradesh (now i Chhattisgarh) , Through Police Station— \ Chakarbhata, District Bilaspur (CG) Q DB: HON’BLE SHRI JUSTECE L.C. BHADGO 85 HON’BLE SHRI JUSTICE S‘iiNIL KUMAR SINHA, JJ. Apgearance: Shri Abhay Tiwari, Counsel for the appellants. Shu‘ U.K.S.Chandel, Panel Lawyer for the State. oRAL JUDGMENT (02.11.2007) LC. BHADoo, J. Heard. This appeal is directed against the judgment of conviction and order of sentence cated 24.2.1999, passed by the Special I mw,m,m m m gi 200 mm (W) amgg 1 ‘ 1 ‘mmm ‘LR mm WfaEI ammam ‘ Judge {FTQ Bilaspur " Sesswns Tnal No 5o4/ 1997 whereby § and where undsr the 1 amed Speclal Judge after holdmg the accused/appellant Vlja gmlty for commlsswn of the offence punishable under Secti‘ s 302 8a 201 oi IPC for comrmttmg ‘ murder of Devnandan s ntenced hlm to undergo imprisonment ~ r u forhfeandRI forS g; ears respecmvely He also conv1cted g Santoshl Bal fox comml S1011 of the offence pumshable undel ‘ Secuon o02 read w1th ctlon 84 of IPC and sentenced her to undergo unpnsonment for hfe for commlttmg murder of Devnandan, her husba . It was further directed that both the sentences of Vijaj; shall n concurrently However he acqultted the accused persons Aja Kumar Prabha Bal wlo Ajay Kumar Bnhaspatl Bar w/o Tlkar w/o Vljay for comm1ss1on f the offence punishable under Secnon 2O 1 of IPC The case of, the pro ecution in brief is that on 5.7.1997 in between 7 and 8 p.m., D Vnandan (since deceased), husband of Santoshi Bai returned to his house and saw that. the accused/appellant— V1Jay was hiding himself 1n his house on which Devnandan asked ' as to what he 1s domg there. The accused/appellant— Vijay t ought that illicit relationship between him and Santoshi Bai, ' therefore, he attacked of Devnandan shall come in to light vnandan by pressmg his neck somehow Devnandan w s able to release h1mself from the started between the two. In that n w e e 39H ‘kf process, Vijay thmw Devnexidan on ths cot and sat on hi3 chest, started pressing his neck, Whereas, Santoshi Bai was holding the legs of her husband—Devnzhdan, so That, he may not be able to release himself from the‘clutches of Vijay. Ultimately, on account of pressing the neck of Devnandan by Vijay, he died spontaneously. After digging a pit, body of Devnandan was buried in the house of Devnanda‘n and the site was covered by paddy z straw by both the accused/appellants. A missing report was lodged in. the Police Sta' n on 7.7.1997 by PW—5 — Lomash, brother of the deceased. T ereafter, accused— Vijay, Santoshi Bai, Ajay Kumar, Prabha Bai, santi Bai and Brihaspati Bai, shifted the body of Devnandan to jay house and that was buried in the house of Vijay. During e quiry, accused/appellant— Vijay gave memorandum EXP/8 reg ‘ding the place, where the body of Devnandan was buried. pursuance of that he got recovered the body of Devnandan dom his house under EX. P/ 16 in presence of PW—6 ~ Sriku ar Lahre as also in the presence of PW—9- Dr. B.D. Sonwam', sed on that merg intimation under Exs.P/ 13 85 P/ 14 was rec rded. F.I.R. under EXs. P/ll 85 P/ 12 was registered. Body of vnandan was sent for postmortem examination under Ex. P/ 11 to Primary Health Centre, Chakarbhata, where Dr. B D. Sonwani(PW—9) and Dr. H.P.Gupta (PW-1 1) conducted the po rtem on 11.7. 1997 and opined that the cause of death was a phyxia due to throttling. The spade with which, the pit was d g and shirt of the accused were seized m i I a e s o WWW wW $aimél1a¥1 under Exs.P/5 <35 P/6. InquEst under EXP/7 on the body of Devnandan was prepared After completion of the investigation, charge sheet was filed s in the Court of J.M.F.C. Bilaspur, who in tum committed case to the Sessions Judge, Bilaspur ; a f n‘om where, the leaxn transfer for trial. The prosecution in order to establish the charge against ned 11 Witnesses. The statement of the accused persons was ecorded under Section 313 of the Code of Criminal Procedure, in which, each of the accused denied the t them and stated that they are innocent and have been f sely implicated in the crime. i against the accused pe‘ & the accused persons ex material appearing ag The learned Spec Judge, after hearing the counsel for respective parties conv cted and sentenced the accused] appellants as aforementio ed. We have heard Sh Abhay Tiwari, learned counsel for the appellants and Shri U.K.S Chandel, Panel Lawyer for the State. Shii Abhay Tiwari as not disputed the homicidal death of Devnandan. Moreover, —l— Ku. Anjani, daughter of the deceased and the acc sed/appellant— Santoshi Bai, has the fateful night, accused] appellant— whereas co—accused- Santoshi (her mother) was holding the legs of her father. PW—9 — Dr. B.D. Sonwami has stated that n 11.7. 1997, at about 12.30 noon, he \ categorically stated that Vijay throttled his fath n e Special Judge received the case on r e i ' s W e ' WW, m,W mmw ammm mmm _,_ § conducted th€ postmorte ihat th€ body was putrs. left cheek and neck of th the sajne was betweefr' body was in swollen con: was injmy in the form ( and mose were anti-1r fractured. The cause oi His report is Ex, P/ll. medical evidence, it is es‘ homicidal in nature. As far as complic1 question is‘ concerned, Si against Santoshi Bai an deceased, therefore, fror cannot be held that accused / appellant-Vijay her husband. In this cas aged about 8 years, accused J appellant— Santo 8.00 pm, on the fatefu mother and uncle-Vijay v her younger brother and to house and asked her mother to prepare tea, which was refused by her mother, therefore, In on the body of Devnandan and found tied and stinking. There was injury on e deceased. Tongue was protruded and he teeth. Skin was peeled OE and the iition. He has further stated that there 1f bruise on the neck, cheek and chest .ortem in nature. 'death was asphyxia due to throttling. Therefore, from the above ocular and ablished that the death Devnandan was ty of the accused persons in crime in 1ri Abhay Tiwaii argued that allegations : that she was holding the legs of the n the evidence available on record, it she was sharing intention with the to commit murder of Devnandan, who is e, the sole witness is PW—l— Ku. Anjam’, daughter of the Hyoid bone was deceased and the shi Bai, who has stated that at about l evening, the accused/appellant, \ her rere at her residence along with she and sister. At that time, her father returned 3mm (W) mm 11-1 200 mWd‘WW %a¢iftra3n%¥1 her father took turn for bringing wood. H9113}w? avy In the meantime, accused/appellallt— Vijay caught her father fmm the neck, pressed his neck and threw him on the ground. Her mother immediately held the legs of her father and after some time her father died. Thereafter, Vijay brought Kudari. Vijay 311d her mother tool: the body in the Kothar (a place meant for tying the cattle) and buried the body there. Shri Tiwari argued at she is a child witness. Moreover, her police statement was ecorded on 1 1.7. 1997. She is a cooked up witness, therefore, no reliance can be placed on the evidence of this witness. It is tine that she 1s a child witness. The law relating to acceptability of the evid e of a child Witness is that the child Witnessmust the comp tent and she may not be subject to tutoring, therefore, befor. accepting the evidence, the Court is required to scrutinize the vidence with care in order to ascertain that the child witness w s capable of understanding and shall also give answer after un erstanding the question and she or he . As far as the delay in recordin‘g the statement of Ku. Anjani i concerned, in para 9 of her evidence, she has categorically st ted that Vijay threatened her not to disclose this fact to anybo y, otherwise he will kill her. it is an admitted position that the child witness was residing with her mother Santoshi Bai, who was also a party to the crime; therefore, on a ,count of threat given to her, she could not disclose this fact to body. It was natural for her to keep e e ' g - y éé ‘L HW,W,W W m “i 200 mm (W) amfg; ‘ .‘ i mmm .-7_ WM§§€IW awfmaném mum aild not to open her mcuth, The heinous crime was committed in h6r presence amd in that Ciime, not only Vijay, her uncle, but her momer also participated, therefore, the delay has been explained and that't 3o in a justified manner. Now coming to tht dependability of the evidence of this lVf witness, evidence of this Witness is corroborated in material i t l particulars on account o.‘ the fact that Santoshi Bai, mother of A the child was having illicit relationship with the co—accused- Vijay, consin brother of ilie deceased, who was residing in her adjoining house. Illicit r6 lationship between Vijay and Santoshi 1 Bai has been established by the prosecution adducing the evidence of PW-2~ Rajesh Kumar Kaushik and PW-7- Lakhanlal, who have stated about the illicit relationship between the two. Moreover, the body of Dei'nandan was exhumed at the instance of the accused/appellant-Vijay from his house, that has been established by the evidence of Pw-ic- Dmp Mitra as as?) PW~6~ Srikumar Lahre and PW—9 — Dr. B.D.Sonwani. In the cross—examin ation the defence has not been ab'le to elicit any circumstance, which discredits the evidence of these witnesses. Therefore, from the ocular evidence of PW-l— Kn. rt Anjani, daughter of the deceased and the accused/appellant- Santoshi Bai as also recovery of the body of Devnandan at the instance of accused/appellant—Vijay from his house from a pit. Motive behind the crime was that Vijay and Santoshi Bai were an A having illicit relationship since last 2 years. On the fateful day, \ T l e\\ r 1 f i l l mm (W) WWW ammm WWW 13‘étW %Wm when thé deceased returned to his house that made the accused/appeHant—Vijay suspicious and he became frightened that now evelything will be disclosed about his relationship with Sailtoshi Bai because Pallchayat in the ViEage Bad, as she is having villagers persuaded De A therefore; he should kee persuaded saying that sh not indulge in such a statement of PW-7— appealing on record; md been established. Mor daughter of the decease Santoshi Bai. The body instance of the accust therefore, to this extent, Vijay and Santoshi Bai reasonable doubts and s record by the prosecution Now coming to the the act of Santoshi bai is her that she was sharing of Devnandan, in order to learned counsel, we have ior to that Devnandan convened a stated that he will not keep Santoshi it relationship with Vijay, but the ndan that he is having children, Santoshi Bai. Even Santoshi was also is a lady, having children; she should . This fact has been proved by the n, therefore, h‘om the material tive for commission of the crime has eover, the eye—Witness is the minor d—Devnandan and accusedjappellant— of the deceased was exhumed at the ‘d/appellant Vijay from his house, complicity of the accused/'appellant— in the crime is established beyond ifiicient material has been brought on arguments of Shri Tiwari that as far as concerned, it cannot be attributed to intention with Vijay to commit murder appreciate the arguments advanced by carefully scrutinized the ew'dence of Wm in 200 h L r d 'c a s a mm .— a» éwdtlanéw if A PW«1— Ku. Anjagi, who wztnsssed the incident as also the medical evidence of Dr. B.D.Sonwani(PW—9) coupled with postmortem report, EX. Pf 1 1. PW—l—Ku. Anjani has stated that accused] appellant- Vijéy after holding her father by neck, threw him on the ground and held the legs of her ther. No doubt, this act of the accused] appellant- Sant shi Bai facilitated the crime because by That act: deceased was t able to move and get him released from the clutches of Vi . Her intention can also be gathered from the fact that she wa having illicit relationship with Vijay for quite some time and whe her husband-Demandan saw Vijay in his house in hiding co dition, both Vijay =and Santoshi Bai becamexsuspicious and f ghtened that now their relationship will come to light in the vill ge, as prior to that the deceased had already convened a Villag’ Panchayat regarding illicit relationship between Vijay-and San oshi Bai, therefore, for all practical reasons, Santoshi Bai de ided to assist Vijay in commission of murder of her husband. per the medical evidence, when Vijay assaulted Devnandan, ev n his hyoid bone was fractured. After commission of the crime, cused/ appellant — Santoshi Bai along with co—accused- Vijay to z: the body and buried the same in the Kotharby digging a pit. It is established law th t the common intention can be formed mission of the crime also. When W s a o j I s c m wQwuw$ C¥$Em§) mmm ammm ERMRa%aa&m ‘_(O\ WWIWW §¥W3né¥t Vijay was pressing the 1 trying to release himst therefore, to faciJitate th‘ held the legs of the de‘a him helpless, .L accused] appellant— Vija§ thereby he committed DEC commission of the crime conduct of Santoshi Bai estabh'shed her intention that she was s axing intention with accused/ appellant- Vijay for commission of xeck of the dcceased, the deceased was If from the clutches of the accused, i crime, accused/appeHant—Santoshi Bai :ased—Devahdan {her husband) to make tum helped the to press the neck of the deceased arid murder of Devnandarl by pressing the the previous conduct and during motionlhss and that in k. ‘ Therefore, fr sunita devoid merits,- liable dismissed. ,a iiie - ”sm- L.c.BHAD00 77/ Judge Sd/— SU'NIL KUMAR SINHA‘ Judge WW in 200 o e t