,,i»in»*;, 1«L HIGH COURT OFCHHATTISGARH^AT BILASPUR DIVISION BENCH s . CORAM: HON'BLE MR. T.P. SHARMA & HON'BLE MR. N.K. AGARWAL, JJ. APPELLANT (IN JAIL CUSTODY) RESPONDENT CRIMINAL APPEAL N0. 145/2003 Jagat Ram son of Mani Ram Dhanuhar, aged about 35 years, resident of Village -Koiikona, P.S. - Bango, Distt.-Korba (Chhattisgarh). VERSUS State of Chhattisgarh, Through, P.S. Bango, Distt. Korba (Chhattisgarh). ih=. CRIMINAL APPEAL UNDER SECTION 374 (21 Cr.P.C. Present:- Shri V.P. Gupta, Advocate for the appellant. Shri M.P.S. Bhatia, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 11/01/2010) The foUowing iudgment of the Court was passed bv T.P. Sharma. J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 25/9/02 passed by Sessions Judge, Bilaspur in Sessions Trial No. 168/02 whereby dnd where under after holding the appellant guilty for the commission of the offence of murder convicted the appeUant under Section 302 of the Indian Penal Code and sentenced imprisonment for life. ac'T^x' ^s*i!«nsi ^' .;...-.-,,.%3t Ws'»xss"sss^ 2. The judgment impugned on the ground that without any iota of evidence Court below has convicted and sentenced the appellant aforementioned. 3. Brief case of the prosecution is on fateful day of 2- 3/4/2002 at about 5 A.M. appellant, deceased Dhankunwar wife of the appellant, PWlAghan and PW2 Sukrita the daughters of appellant and deceased along with other children were present in the house. Appellant assaulted his wife by fits and kicks and caused her death. He informed the police that deceased died as a result of self inflected injuries vide Marg Ex. P-9. First Information Report was registered Vide Ex. P-14. After summoning the witness Vide Ex. P-2 inquest over the dead body of the deceased was prepared Vide Ex. P-3. One wooden piece was recovered vide Ex. P-4, broken piece of bangle stained with the blood were recovered vide Ex. P-5. Dead body was sent for autopsy to Primary Health Center, Pondi- Uproda Vide Ex. P-6. Autopsywas conducted by PW7 Dr. G.S. Jatra Vide Ex. P-7 following injuries were found over the body of the deceased. (1) Contusion over left anterior side of the forehead of 3" x 2" (2) Contusion right side of the forehead 3" x 1 l/a" (3) Contusion over anteriorside of the neck 3" x 1 Va " (4) Contusion 4 Va " x 3" over the chest. (5) Contusion 2" x 1 'A " over the right cheek (6) Contusion 1 % " x 1" over left side of cheek. (7) Fracture 7t»'\.;; ^-'c^ i.'^?i;, -;. „, l<i[3»:j|«;^ !^ ", "'":i@ \:k^-f/ $5 ^^s^ of frontal bone was found. Cause of death was due to shock as a result of head and other injures. 4. Seized cloths of the deceased were recovered vide Ex. P- 8. Blood stained and plain soil were recovered from the spot Vide Ex. P-10. Statement of the witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short 'the Code). Seized articles were sent for chemical examination Vide Ex. P-17 and presence of blood over the seized articles were confirmed vide Ex. P-19. After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Katghora who in tum committed the case to the Court of Sessions, Bilaspur. 5. In order to prove the guilt of the accused prosecution examined as well as 9 witnesses. Accused were examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. 6. After affording an opportunity of hearing to the parties leamed Sessions Judge convicted and sentenced the appellant aforementioned. 7. Learned counsel for the parties are heard. Judgment impugned and record of Court below perused. , 8. Learned counsel for the appellant vehemently argued that case of the prosecution rest on the statement of PW1 BRy'T^r '^ ^^ 4 •fi-ili]./ Aghan and PW2 Sukrita the daughters of the deceased and child witnesses whose statement are not sufficient for drawing the positive inference that appellant is a person caused the fatal injury to the deceased. 9. Leamed counsel for the appellant further argued that even if the case of the prosecution is admitted as gospel truth then in absence of any motive of causing murder of his wife the conviction of the appeUant under Section 302 of the Indian Penal Code is not sustainable under the law. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that the incident took place at about 5 A.M. at morning at that time only adult member appeUant was present in his house he is under obligation to explain the cause of death who was present and died in the house of the appellant. PW1 Aghan and PW2 Sukrita are child witnesses their presence are natural, they have categorically deposed that appellant has caused injury to their mother same inspire confidence. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. In the present case death as a result of antimortem injury of the deceased Dhankunwar is not substantially disputed by the appellant either established by the evidence of PW7 Dr. G.S. Jatra and a' s^i? S^Si^ s- autopsy report Ex. P-7 which reveals that 6 injures including fracture of frontal bone was found over the body of the deceased. Death was homicidal in nature. 12. As regard the complicity of the appellant with crime in question is concerned substantially the conviction is based on the stateraent ofthe child witnesses PW1 Aghan and PW2 Sukrita are 8 & 6 years aged child witnesses. They are daughters of appellant and deceased their presence in the house at the time of incident at about 5 A.M. was natural, In case of child witnesses as held in case of Rameshwar S/o Kalyan Singh-Aopellant v. The State of Raiasthan- Respoadent1 Apex Court has held that Court is under obligation to ensure that child understands the duties of speaking the truth. In the present case Court has asked the questions to the child witnesses to ensure that where they understands the duty of speaking the truth or not Court has also opined relating to PW1 Aghan fhat she understands the duty of spealdng the truth, in case of child witness as held in case of Shivji Genu Mohite, appellant v. State of Maharashtra, resnondent2 if child witness is able i,o stand the test of cross examination successfully and there • AIR (39) 1952 SC 54 2_AIR 1973 SC 55 (V 60 C 10) K^ '^" ^Tg ltaiE.rti'.-aB¥i!lISs/ •a is no other infirmity then his statement should not be discarded lightly. 13. In the present case PW1 Aghan aged about 8 years has categorically deposed in her evidence that appellant who is his father has assaulted her mother by kicks over the neck, and back of her mother and PW2 Sukrita was also present at the time of incident. She has also deposed that her grand-father came to intervene the incident. PW2 another child witness Sukrita has corroborated the evidence of PW1 Aghan and PW3 Dhansaya neighbour of the appellant has deposed that at the time of incident PW1 Aghan and PW2 Sukrita came to his house and told that their father i.e. appellant was beating to their mother then he went to the house of the appellant and asked why he has beating to his wife then the appellant admitted that he has assaulted to his wife and deceased was lying in the floor. PW6 Mangalsaya has also corroborated the evidence of PW3 Dhansaya. Defence has cross examined this witness at length but has not been able to illicit anything in their cross exainination to discredit their testimony child witness have immediately inforraed the incident to their neighbour who immediately came to the place of incident and asked the appellant that why he has beating his wife the evidence of child witnesses PW1 Aghan and PW2 Sukrita and PW3 Dhansaya and PW6 ^SVSfS'ss^SfS i£;;.;^''cl'-"~~--'•:'•£-£ . -^ - Mangalsaya inspire confidence and safe to rely to the extent that appellant has caused injury to the deceased. 14. Court below has convicted the appellant under Section 302 of the Indian Penal Code in the present case there was no motive or any cause for causing death of the deceased appellant has not used any weapon to inflect injuries, he has caused the injuries by hands and fits which shows that he has not caused any injury with a motive to conimit the homicidal death of the deceased amounting to murder and he was reckless in causing injury but by inflecting injiuy specially over the head and neck he was having knowledge that he may cause death ofhis wife. 15. The evidence adduced on behalf of the prosecution is not sufficient for drawing fhe inference that appellant has caused homicidal death of the deceased amounting to murder but same is sufficient to draw the inference that appellant has caused injury with the knowledge that deceased may died as a result of such inji-u-ies while convicting the appellant under Section 302 of the Indian Penal Code Court below has not considered the most material aspect of the case i.e. motive of the offence and is thereby committed an illegality the evidence adduced on behalf of the prosecution reveals that the act of appellant !>' ^""'J . ^-^^ ^•^^^' ja—^&^ does not traveled beyond under Section 304 Part-II of the Indian Penal Code. 16. For the foregoing reason, appeal is partly allowed judgment of conviction and order of sentence is partly modified and in stead of conviction under Section 302 of the Indian Penal Code appellant has convicted under Section 304 Part -II of the Indian Penal Code and sentence for the custodial period smce 5/4/02 till today, he be released if not required in any other case. Sd/- T-P. Sharma Judge Sd/- N.K. AgrawaJ Judge IA:'> w^'mv