%? Jrz. AA, lA A HIGH COURT OF CHHATIJSGARH AT BILASPUR Criminal Aggeal No.1 1 1 6/2007 ABPELLANT Manghi La! S/o Tolaram Satnami, (lnJail) aged Chakarvay. about Out 42 years, post Mara. R/o vinage Police Station : Nandghat, Disttict Durg (CG) VERSUS RESPONDENT State Station of Nandghat, Chhattisgarh District Thfough Durg : (CG) Poiice CRIMINAL APPEAL UIS 374 12] OF THE CODE OF CRIMINAL PROCUDERE Appearance: Shri K. Jain‘ counsel for the appellant. R. Shri D.K. Gwalre. Government Advocate for the State. Division Bench:- ‘ Hon’ble Shri T.P. Sharma 8. Hon’ble'ghrl R.N.Chandrakar.JJW (08.07.2011) Per T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22.1 1 .2007. passed by the Additional Sessions Judge. Bemetra‘ District Durg (CG) in S.T.No.103/2006. whereby and whereunder the learned Additional Sessions Judge, after holding the appeiiant guilty for cOmmission of culpable homicide amounting to murder of his step mother- Ananda Bai, convicted the appellant under Section 302 of the IPC and sentenced for life imprisonment and fine of Rs.1 00/--, in default of payment of tine to further undergo SJ. for 1 month. 2. The conviction is impugned on the ground that without there Being any iota of evidence sufficient for conviction of the appellant, the learned i1 Additional Sessions Judge has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case of prosecution. on fateful day of 12.2.2006. at about 8.30 am, on account of family dispute. this appellant assaulted Ananda Bai by axe over her neck and chest and thereby caused her instantaneous death. The incident has been witnesses by 9 years minor child - Ram Manohar (PW-12), grand son of the deceased. Ramprakash (PW-6) Kotwar went to Police Station and lodged merg vide Ex. P/5 and on the basis of Ex. P/5, FIR vide Ex.P/4 was registered. The Investigating Officer n left for the scene of occurrence and after summoning witnesses vide Ex. P/1, inquest over the dead body of the deceased was prepared vide Ex. PI2. Finally, numbri FIR and merg were recorded vide Ex. P/6 and Ex. ,l P/7. Spot map was prepared vide Ex. P/8. Blood stained and plain soil was recovered from the spot vide Ex. P/17. Dead body was sent for autopsy to P.H.C. Nandghat vide Ex. P/16, where Dr. H.N. Gupta (PW-1 1) conducted autopsy vide Ex. P/13 and found following injuries : i. lncised wound of 15cm x 0.3cm x bone deep over right side of the neck ii. lncised wound of 10 x 3 cm x bone deep with fracture of right clavicle bone. Mode of death was comma. Blood shined axe and clothes of the deceased were seized vide Ex. P/14. Seized articles were. sent for chemical examination and presence of blood over the clothes and on the axe was confirmed vide Ex. Pl20. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After completion of investigation. charge sheet was filed before the Additional Chief Judicial Magistrate. Bemetara. who in turn. committed the case to the Court of Sessions. Durg from where the learned Additional Sessions Judge received the case on transfer for trial. 5. ln order to prove the guilt of the accused/appellants. prosecution examined as many as 15 witnesses. Accused was examined under i ‘H A”‘L \ \ Section 313 of the Code. in which. he denied the circumsmnces appearing against him. innocence and faise implication in crime in question was ciaimed. 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. 7. We have heard Shri R.K. Jain‘ learned counsel for the appellant and Shri D.K. Gwalre‘ learned Government Advocate for the State, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is substantially based on the evidence of Ram Manohar (PW-12). minor child witness whose evidence does not inspire confidence and trustworthy and factum of tutoring the witness on account of enmity cannot be ruled out. He further submits that as per case of i prosecution, on account of family dispute this incident has taken place. but the appellant has not caused the injury to the deceased with intent to cause her death. therefore. if this evidence is considered as a gospel truth then also the case of the appellant does not travel beyond the scope of Section 304 Part l of the IPC. 9. On the other hand. learned counsel for the State opposed these arguments and submitted that present appellant has committed culpable homicide amounting to murder of his step mother- Ananda Bai. who was a woman of 54 years old and at the time of incident she was not holding any arm; there was no danger to the life of the appellant even then also the appellant has caused fatal blow over the chest and neck of the deceased. while she was in helpless position. therefore. the appellant has caused homicidal death with intent to cause the death of the deceased. 10. ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. h: ‘ 4 11. In the present case‘ homicidal death as a result of fatal injury over the vital part of the deceased- Ananda Bai has not been substantially disputed on behalf of the appellant,- on the other hand, it is established by the evidence of Dr. H.N. Gupta (PW-1 1) and autopsy report Ex. P/13 and death of Ananda Bai was homicidal in nature. 12. As regards complicity of the accused/appellant in crime in question is concerned, conviction of the appellant is based on the evidence of Ram Manohar (PW-1 2), a child witness . aged about 9 years, who has deposed that he along with his grant mother- Ananda Bai were coming with Ber branches for fencing. this appellant came with axe and assaulted over her head‘ as a result of which, the deceased fell down then Patanga, Shop- keeper directed him to fly from the spot to save himself then the appellant fled from the spot. Defence has cross examined this witness at length. ln detailed cross examination he has specifically deposed that he was with the deceased Ananda Bai and .present appellant has caused repeated injury to Ananda Bai. He has seen the incident. Child witness is a competent witness. In order to place reliance upon the evidence of child witness Court is required to satisfy itself that whether the witness is able to understand the duty to speak truth and is in a position to answer the question put to him rationally. In or'der to satisfy itself, Court has asked certain preliminary questions and after satisfying itself, Court has examined this witness. He has deposed in detailed in his cross examination that he was present on the spot and he has seen the incident. Appellant has caused repeated iniury to Ananda Bai. Evidence of this witness ’inspires confidence and trustworthy. His evidence is well corroborated from FIR and by the medical evidence. Evidence of Ram Manohar (PWI1 2) is sumcient for drawing an inference that the appellant has caused homicidal death of the deceased Ananda Bai. 13; As regards question of intention is concerned, at the time of causing such injury Ananda Bai, 54 years aged woman was not holding any weapon; she was not in a position to cause any injury to the appellant; R v g{ «A J J there was no any othet danger noticed by the appeilant at the time of J causing such injury to the deceased then also the appellant has caused such fatal injury upon the neck and chest of the deceased‘ resultln into her instantaneous death‘ shows grave intention of the appellant for causing homicidal death of the deceased Ananda Bai. After appreciating " , the evidence available on record, the learned Additional $essions Judge ' has rightly convicted and sentenced the appellant as aforesaid mentioned. 14 On close scrutiny of the evidence, we do not hnd any illegality or infirmity in the judgment and conviction and sentence of the appellant. Consequently‘ the appeal being devoid of merits is liabte to be dismissed and it is hereby dismissed. k‘uu_\_m,w .M e Sdl- I T. P. Sharma n55 . Judge#