t: HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.511/200S APPELLANT (In Jail) VBRSUS RBSPONDBNT Bhodlo Ram s/o Baiidhanu Ram Korwa, aged 32 years, occupation cultivation, resident of viUage Murhi Malseiaa, P.S Bagicha, District Jashpur (CG) State of Chhattisgarh Through the Distdct Magistrate Jashpur, Distdct Jashpui' (CG) CRIMINAL APPEAL U/S 374 (21 OP THE CODE OF CmMINAL PROCUDERE Appearaace: Srat. Indira Tripathi, counsel for fhe appellatit, Ms. Madhu Nisha Singh, P.L. for fhe State. Divisiosi Beach:- Hon'ble Shri T.P. Sharma & Hon'ble Sfari R.L.Jhaawar.JJ Per T.P.Sharma, J, ORAL JUDGMENT (18.2.2011) ChaUenge ia fhis appeal is to fhe judgment ofconvictiou aad order of sentence dated 7.1.2005, passed by the Sessions Judge Jashpur ini S.T.No.79/2004, whereby and where under tiie learaed Sessions Judge, after holdiag fhe appellant guilty for comm.ission of culpable horaicide aaiounting to xiiurder of his fafher- BaadhaauraTa, convicted the appeUant under Section 302 of the IPC an.d seutenced for life inxprisouBient aiid fine of Rs.250/-, in. default ofpayment offine to further undergo RJ, for 15 days, 2. The conviction is impugned on fhe groiind fhat without tliere beiag any iota of evidence sufficient for conviction of the appellaiit, the leanied Sessions Judge has convicted aad sentenced tlie appeUaiit as aforementioned and tiiereby conmiitted illegaMty, 3. As per case of prosecution, on fateful day of 12.6.2004, at about 5.00 pin, while Baadhaaurani (siace deceased) was fetchiag water froca the Haiid Pump along wifh. his 4 years graad son Fulsai (PW-1), tb.e appeUaat, who was residitig separately froni his fatlier, assaulted his fafher aad caused his mstantaneous deatli. Fulsai (PW-1) 4 years chUd witaess went to house aad iaforoied his gran4 niothier i.e. wife ofdeceased uaaiely Thumri (PW-2). She rushed immediately to fhe spot aad saw iiijured body of her husbaiid, who died after some tmie. Kayaru (PW-3) aaotlier son of fhe deceased went to Police Station on second day aad lodged FIR vide Ex. P/1 and m.erg was also recorded vide Ex. P/5. Investigating Officer left for fhe scene of occuirence and after suiniaoning witaesses vide Ex. P/7, iaquest over fhe dead body of the deceased was prepared vide Ex. P/8. Dead body of the deceased was sent for autopsy to C.H.C. Bagicha vide Ex. P/9, where Dr. T.K. Sahu (PW-8) conducted autopsy vide Ex. P/13 aad found foUowuig iajuries : i, Lacerated wound of 7 x 3 cm up to bone deep over right eye ii. Lacerated wound of 3 x 2 cm up to bone deep over left tem.poral region iii. Lacerated wound over right temporal region wifh fracture of uiteraal bone size was 8x5 cm. x bone deep. iv. Contusion of 15 x 10 cm over right arm with multiple abrasion Mode of death was shock aad deafh was honiicidal ia natu.re. Blood stained soU and plain soil was recovered frora fhe spot vide Ex. P/4. During fhe coui-se of iavestigation accused was ® taken into custody; he made disclosure stateinent of stick vide Ex. P/2; same was recovered at titie instaace ofappeUant vide Ex. P/3. Spot Map was prepared vide Ex. P/10. Once piece ofcloth was seized vide Ex. P/11. Statemeuts of fhe witaesses were recorded under Section 161 of fhe Code of Crmiinal Procedure, 1973 (in short the Code). 4, After completion of mvestigation, charge sheet was filed before fhe Judicial Magistrate First Class Jashpur, who in tura^ coinxnitted tlie case to fhe Court of Sessions, Jashpur, who conducted the tdal, 5. In order to prove the guilt of fhe accused/appellant, prosecution examined as iiiany as 9 witaesses. Accused was examined iinder Section 313 of tiie Code, m which, he denied tihie circunistances appeariiig agamst hiai, ianocence aad false mipHcatiou ia crmie ia question was claimed, 6. After affordiag opportunity of hearing to fhe parties, the leanied Sessions Judge convicted aad sentenced fhe appeUant as aforesaid lEientioned. 7. We have heard Smt. Indira Tripathi, leamed counsel for the appellant aiid Smt. Madhu Nisha Singh, learaed P.L. for the State, perused fhe judgment impugned and record of the trial Court. 8, Learaed counsel for fhe appeUaat vehemently argued fhat in. fhe present case, conviction of fhe appellaat is based on fhe evidence of4 years chUd witaess- Fulsai (PW-1), whose evidence does not mspire confidence aad trastworthy and is not safe to rely for conviction of the appellaat that too for corainission of such heiiious ofifence punishable under sectiou 302 of the IPC. She further argued that evidence of Fulsai (PW-1) does not fiad support froin fhe evidence of wife of the deceased Le. PW-2 - ^^-"^, ^ ^y--"fl'\"'^. ^ ./)•? .". ...,.^ .^ ;.; "^^'..:..--:--"i^^ ^ :^^;v^" %^y <. Thumri or any ofher independent source, fherefore, io. absence of aay corroboration, the evidence of 4 years chUd witaess is not safe to rcly for conviction ofthe appellant. 9. On the otiier haad, learaed counsel for the State vehementiy opposed these arguments and submitted that evidence ofPW-1 Pulsai is sujB&cient for drawing aa inference that present appeUaat has caused fatal mjuries to his fafh.er - Basidhanuram wifh iatent to cause his deafh. 10. In order to appreciate the arguments advaiiced on behatf of fhe parties, we have examiaed fhe evidence adduced on behalfof fhe prosecution. 11, In the present case, homicidal deafh as a rcsult of fatal injury found over ttie body of fhe deceased has not been substaatiatly disputed on behalf of fhe appellaiit, on fhe ofher haad, it is established by the evidence of Dr. T.K Sahu (PW-8) and autopsy report Ex. P/ 13 aad death was hoinicidal in nature. 12, As regards compUcity of fhe accused/appeUaiit m cnme in question is concemed, conviction offhe appeUaat is substantially based on fhe evid^nce of Fulsai (PW-1) 4 years chUd witoess and after satisfyiag fhat Fulsai is able to understaad aad answer fhe question, Court has exammed him. This witoaess has deposed that present appeUaat has assaulted his graiid father i.e. Baadhanuram by stick. As per his evidence he immediately mformed his graad mofher i.e. wtfe offhe deceased PW-2 Thumri, who has corroborated fhe aforesaid fact in para 1 of her evidence, but, ia para 9 ofher cross exammation, she has denied this fact. Except fhe uncorroborated evidence ofPW-1 Fulsai, 4 years child witness, prosecution has not examuied aoy ofher evidence. Wife of fhe deceased PW-2 Thumri has not supported the evidence of ^..^^.-^.^••^^ •^.s^ • 'y. ^, ''-ry 'l-'--.^..-.^-' PW-1 Fulsai as he was not in a position to aaswer fhe question asked to him. Even he did not know whether his graiid fafher was aMve or dead. Defbiitely, evidence of PW-1 Fulsai caiinot be discarded on fhe aforesaid ground but before placiag aay reUaxice up on fhe evidence of PW-1 Fulsai, 4 years chUd witaess, corroboration from iadependent source or from oflier evidence is required. In fhe present case his evidence is not corroborated by any ofher evidence. In absence of any corroborative evidence, evidence of PW-1 Fulsai, 4 years chUd witaess is not sufficient aiid safe for conviction of fhe appeUaat that too for coiainission of heiaous ofience of niurder punishable under Section 302 of the IPC. While convicting aiid sentencing fhe appeUaat, Court below has not considered aay m.sufScieucy of evidence aiid fhereby committed iUegality. 13. For the foregoiag reasons, fhe appeal deser^es to be allowed aad it is hereby allowed. Conviction and sentence offhe appellaat-Bhodlo Ram under Section 302 ofthe IPC is hereby set aside; He be set at liberty at once, He be released forthwifh, if not required ia aay ofher case. sunita Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge