i lU ^A iili'ii^-i. ;i i HIGH COURT OF CHHATTISGARH, BILASPUR \ , ' • . .. ••:•'..'• Critriinal Aooeal No.402/2002 DB: HOn'ble L.G. BhadOOi Hon'ble Sunil Kumar Sinha, J, J Aptiellant RESPONDENT Dhani Ram, s/o Mangalu Muria, aged 26 years, r/o village Karsing, P.S. Kondagaon, Distt. Bastar (C.G) .^;.:- ; .,. ' •- ^. State'of Chliattisgarh. through P.S. Koridagaon, Distt. Bastar [C.G] Appeal underSection 374(21 ofthe Code of Criininal ProcBdure Appearaace: . ; ' : •' : • ''•..:;"1'. : • :./. ;: •:•.'':• ^ :.':! •ShnSubhas&Yadaff;?counse|^:ffi . - ': :' - ShriAshi®;BliiMa».^cil^^l3Be^FosecutOF^; rtHeSfate. ORALJUDGiMENT . (13.9.2007) The followingjudgment of the Court was delivered by L.C. BIia.dob, J, (1) This appe'al is dii-eeted against the judginent of eonviGtion and order ofsentencedated 11.2.2002 passed 'by'the First Addl. Sessibris Judge, Jagdalpur, in Sessions Trial No.243/2001 whereby the learned Addl. Sessions. Judge after holding the accused appellant;guilty fbr coinmission at the oSenGe.i-i/s 302 I.P.C. for committing the inurdef' Qflus wife namelyChandra Kiran senfenced him to undergo imprisonment fbr life and to pay a fine of Rs.SOQ/-, in default^of paynieht of fine to further.undergo R.I. for..sfac nronths. However, the tearned Addl. Sessions Judge; has aequittedthe co-aCcusedManiram. ' '' (2) The caae ofthe prosecufen,;in bjrief, is that accysed Dhani ^ •".: ::: -;''• 1' ^" 1 •'' . ^ 1 '> Rarn gave merg ultimation Ex.P.19»c^^^ o£whiGy, theiF'irst 'Information Report E^.P.18^^s registSred.^m^w^ thatyesterdayon 18.11.2000 atahout I2.0Q- 1.00 ;p.m.i,Ghandm c , !!l,; Kiran went to Kondagaon by Bus and he followed the Bus on Motorcycle, from Kondagaon Chandra Kiran changed the bus for going to his village. He follbwed that bus also on Motorcycle.At about 8 - 9 p.m. in the night after taking dinner, he went for sleep with his wifeChandra Kiran.At about 2.30 - 3 a.ni; on 19.11.2000, somebody knocked the door of his house and asked hiin to open the door, on which he opened the door and came out. Then one person caught him and pressed his mouth. Thereafter 2- ^'. . . :. 3 persons took him at a distgaice of 10-15 paGes and said that he should not raise any cry otherwise they will raurder him. He saw that Naxalites of Dalam namely Ram Dev, Rajman, Jai Singh, Narsingh and another 10-11 personsalongwith 4 ladies were fhere and they said that his wife has informed the police about their activities, based on infbrinatibn giverr t)y his wife, the poEce has seized their articles worttt 'IaKhs' ^of'RupeeS, therefore, today they will not leave her and^ommif her murder. Therea^ alongwith 14-15 NaXaliteswearirig@'eendresses, arihed with guiis and sharp edged weapohs committed murder of his"wife and thereafter they rari towards forest. He informed his elder brother Maniram, Shyamnath Ss.Shiv Rani who caine and saw that his wife was already dead and injuries were presenton her neck caused by sharpedged weapons. The body of Chandra Kirahwas lying in the house. Based bn this report, after registering fhe First Information report, the inyestigating officer, left for the scene of occun-ence. One electric wire was seized froiii the house of Maniram under Ex.P.2, one 3 Pin-Plug and broken pieces ofelectric bulb were seized under Ex.P.4. The plain Soil and blood stained soil was seized xinder Ex.P.5 from the place df occurrence. The site plan was prepared by Halka Patwari. The body of Chahdra Kiran was sent for post mortem examination to Government Hospita^ ICondagaon, where Dr.S. 'Lonhare (P.W.6) condycted postinorteni on the body of Chandra Kiran and prepared the postmorfem report (Ex.P.ll), he opined that the^ cause of death :was excessive hemorrhage diie to severat incised wounds and;t|he death was homicidal in nature. While m the police eustody, ^ManirEiin gave memorandum (Ex.P. 13) anit, in pyrsuanee of that, accused \w\ jo^ins^ BSB.3^qjiipmaq:«BMq^p'j09SiTBo'3jn^BU.ui^piotmo:q^ s^^fl^ap 3®•yodB3M;p3§R3;<3jBT^^ A^ patoiQUT suaia saunft.n aq^ pire ^ussa.icl SBM siyoui JC^EI. siy, •suopjod qosy ptre pesq sip uo spunc^ paspm ot aI8A aI3'tB PW P3SBao3P jo A)ocl SIP a6 ms^iouqsQd aq; pS^onRuoo aq ^Bip psTB^s SBq'fg-^'j) sjequcyi 1: '.: • .' : "':: ' , ' -: ' : :: :'' : ' ' '' : :1 _ •g \IQ 'j^AoajO]/\[ •UBJT^'BJpirei[o jo ipBsp ^Bppiuioq sip pa^nidsip lou s-eq! ^uBHadde aqt •IQ} lasanoo 'ABpe^ qsBqqns'JTO (9) •s^l.S aqi joj joinossQJd onqnd 'jppv '^IWi-tS -qsiqsv uqg pLre ^LTBliaddB aqi -loj psuFioo 'ABpBA LtSBqqng-j]^ p.i'esq SABI[ a^ (S) •s^S-reqo sqi Ip HIO.IJ urejTOB]/\[ p3sn30B-o3 3i.[^ psninbo^ 'sSpnp suoisssg "Ippv psuresi 3Lp '.I3A3AOH •psu6pu3ui3jojB SB urey tuBi[a ^irejpdd^ pasnooB aip paouaiuas pue ps^aiAuoo _ sap-red • aApoadsa-i Stp joj psunoo Suuesq jays 'sSpnp suoisssg -ippy patUBS^ 3L[j, (-^) •30U3J3p JlSlp ui q^BumEAqg g-AVa PI.TC uream^^S g-M"a'm^a ^S^qa T'A'Q psuTuiBxa suosjsd pasnooB aqj, •auiua ^qi: yi psiBoiidmi ^(SS[BJ ussq aAmi.^s'q^ pUB ^Hsapuix a.ie AsLp. jeLp psp'Bsid 'souspTAS ;& ' ' ' " ' ' —^. uopnoasaid 9vff,^^ui3^ ^vaS^^SwJJBa&Ss;^ paiusp Aat^ T.[3p.(M Hiso-d'JO^eT®s^ p3tups^-i aiSM- s'uos.iad pssnoa'B ai^ JQ 4U3uiavs^,3q^^ -sassau:)^ /[]: pgaiui sq^ ^sure^ sSj^qo ai^ qsHqfe^s^oi jSpjo uruoi^noasb.id aqj, (e) •IBU( joj JSJSIIB^ uo asBo 3Lp psiAiaos.i 'a§pnpsuoissag "ippv ^sji^ SIR sjaqM mbjj '.ind^BpSBp 'ggpnjp suotssag d^ SSBO atp paniuiuioo ujri^ m OL[A 'uoBgBpuo^ 'ss^o 4SJTd;'s^^sigBp\[i-Bpipnpjo ;jno3 -'t'i' . . ..' " .'•"'.-'' ' '.. sq^ ui ps^y SBA ^aaqs ag-iBqo 'uopBSiitsaAui sqi jo uopsiduioo jayv •3jTU3( piiB sxy sq^ up punoj SBM popiq ijodaj'pres aqi jtadsv pws paAisoaj SBA updaj sq^ a-iaqA uio.ij 'jndrey 'Aio^joq^q aouapg OTSUSJO^ o^ uoiyBmuiBxa {BoiTxiaqo joj ^uas aj3A sstORJe paziss aqj, •p3(y SBA isstis sSjeqo 'uop^SpsaAUt aip-jo uopaiduipo jsyv •o-i aip Aq p3jBda.td SBA oZ'd'XS Lreld3^is aqj, ••tyfd'xg japun pszias ST3M. 3JIIB[ 3UO VSVft JO soirensjnd ui piie (/.^•d'xg) uinpirejomaui 3AB§ tcreg lueqa pssnoov •ST"cI"xa •I3Pun pszras SBM axy ire 1.-^. incised wounds on the neck. His report is Ex.P.ll; The injuries were caused by the Axe in question. He uispected the Axe, His report is Ex.P.2. Ih view of the medical evidence, it is established that the death ofChandra Kiran was homicidal in nato.ire. (7) As far as the involvtement of the accused in crime in question is Goncemed, except P.W.IO Kiran Netam, all the witnesses have tumed hostile and they have not supported the prosecution case, but the faet remains that fj^)in the eyidence of Sarpanch Dhan Singh (P.W.I) it is apparent that in the ifateful night, Chandra Kiran was at the residence of aecused Dhani Ram,, in village Karsing. He has stated ,that Dharu Rain, Maniram, Shyamnath came and infomied that Naxalites have coine and attacked Chandrakiran. He has further stated that Dhani Ram asked him fhatif any person enquires from him, then he should tell that NaxaUtes haye committed the murder of Chandra Kiran. P.W.4 ^.' • '• •..'. •. -"'':'''.1 Harendra Kumar, who is the nephew of the accysed,son of Shyamnath has also stat^d thataceused Dhani Ram informed him that Chandra Kiran has been murd6red by Dada People who live iri the fprest. Therefore, from fhe above evidence, if is established that murder of Ghandra Kiran was cominitted in the house of Dhani Ram at village Karsing in the intervehing night of 18 Ss 19th ofNov. 2000. (8) P.W. 1 Q Kiran Netam has stated that in the year 1999 she was studying in IXtU class, accused Dhani Ram is the husband of Chandra Kiran, the sister of Chandra Kiran namely Sangeeta is also known to her and she was treatihg Chandra Kiran as her sister. Sangeeta also used to reside witU etiandra Kiran Chandra Kiran was pregnant; fherefore, she was unablei When they were at the'village:Karsin.g, Chandra'Kiran disclosed her that.Dharii Ram has iUiciCrelatioi'ts.withSangeeta, !Chahdra Klran had died in the village of Karsing. Chandra Kiran has one daughter namely Sushmita. Ori fhe date 6f incident, sh& along with Ghandraffiran and her daugKter left for village Karsing, t^ reached Kondagaoii at; 2.30 jp.m., where they iaad st^ed ^for because fo work. ^ m sometime. In Kondagaon, they had changed bus for going to village \ .'.,•.•• ' • . • ' . Karsing. Dhani Ram caine to Karsing on a Motorcycle. They left Kondagaon at about 4 p.m. for Karsing, accused Dhani Ram met them on the way. The accused first took fhem to his residence from where he fook them to the house of Shyamlal,.thereafter they retumed to their house. After taking dinner, they went to sleep, in the night the accused called Chandra Kiran but she refused to go to his rQom, then she enquired from her sister as to why she is not going, thert Chandra Kiran"disclosed her that Dhani Ram has developed illicit relations with Satigeeta, therefore,she wiU hot gp to his room. Chandra Kiran did not go to the room of accused. She has further sfated that Chandra Kiran asked for a mat, and she after spreading the mat on the ground slept there. The wife of Maniram is also known to her because she invited Chandra Kiran fbr meal, when she came CSiaridra Kiran did not woke up, therefore, wife bf ManteRam spnnlcled wafer on her face, Chandra Kiran woke up arid topl^ her ineal. Thereafter she again went fbr sleep. She 'was also sleeping in the sanie room where Chandra Kiran was sleeping.In the raid-night, the accused came there and asked her to go tp another room, on which she stated that she will not go to that room, at that time Chandra Kiran also woke up and said that what' is happening, on which she informed Chandra Kiran that the accused is not allowing her to sleep near the fire. He is insisting that she should go to another room, on which Chandra Kiran asked the accused to allow her to sleep here only, on this Dhani Ram started threatening and asked her to go to another room for sleep, at that time she asked time froin accused on which he said that it was 2 a.m. Thereafter, she went to the rdom where she was asked to go. The accused after closing the door bolted from putside. After half an hour, she heard the sound of foot moyemerit and thereafter she heard the sound ofknoclcing of the door. She becaine frightened and went for sleep after coverihg the body with the blanket, she he%rd the eries of Chahdra Kiran and after some time, the sister in law of Chandra Kiran came and opened the door, whicH was bolted fi-om put.sid®,She asked her 's>- see what. has happened and said that 10 - 15 • people cairte and lit^^^^^-i^iPi^^t^i ^ •^^h^S:.L^'^b';+ri-.^^vJ^;.-i< ssst^iM stqt 'io'Bj-ai 'uiiq ^q ua^ijA Apus^isApBUT ussq SBq J:35[ire^ PJOA aip 'T-Q'xg ui •vev^ psys^s /iyiaauoSsfeo SBL[ 'uoi^uTttrexa ssojo siq jo ^-['vjvd u; (TT'M'd) la^d 'd'S '-ISOUJO SupBgpssAUi aip 'JSAOSJO]^ •iqgiu ^njs^j aip UT urBy itreqa jo aouspxsaj sip ys Svasjsyi SSB^TA ui luassjd qonui AISA SBA SSSUITM siip tBtR SAoqs uoR-tod siip 'ajojajaqj, '^ssStres psdd^s 3i,[s auip tBqi ys pue ^ssgLreg ipu& Suidasis SBA sq usqA UIB^ IUBLJQ pasnooB 3Lp tqgnBO aqs ^Lp jsq 01 psndsj sqs usq^ uiBy itreqa Ot os Suijfes ST sqs XL[A •vevftv.isjiT^i BJpuBqo UJQJJ pajmbus sqs qoiqM uo uiiq q^TA dsajs HIA ^asSireg iBq^pres Lrejra ^.ipLreqo 'mooj siq ui daats o^ UBJI^I ^JpLreqo ps^o urey lUBqa I'B3ra Suis;^ jsye ^qSro aip u; '•ui-d T T - 01 YeV psfe^s jaipjnj saq sqg •jsq ipu&guoiB jsq 3[oo^ aqs sjoja-oqi SIBSA sureoaq iiBJptBJpireqo ssnBosq ps^^s SBI[ sqs •yev^ jsye isnfasnBoaq ApusiJSApBTJT uaniJA ussq s^q JS^IIB^ pjOA avft yav^ JBSp ssmoosq ^i usio p^sj ST ^usuis^s 3pi[A siq^ ji 'icrey TUBqa jo aouapisaj avff. o^ SuioS joj js^ire^ joj uoB§^puo5iyai sqs '•ux-d QS'9 - S V^oqe -PBVQ tv.suiafe^s pres aq^ ui pauopusui ussq seq •K 4'eip ^aajjoo st ^i "T-a'x3 ^uauis^B^s Areip ss'eo aonod aip pasrusd SA^q SA 'ABp'e^'Jt\[ •^q psOLreApB ^usmnSjB sq^ s^-BpajddB O^ J3pJO UI •SUTSJB^ 3§B^TA 3Vft UI 33U383jd J3q JO UORS3nb ou ST s.iaip 'ajojajaii: 'jssfire^ o^ uo^g^puo^ uiojj pauirqaj sqs OOOE'TT'ST Vio fBV^ psi^s s^q sssLqiA siq: T-Q"xa ^uauis-t^s astiod m vevff. parSjce •pie'[\3dSB 3Lp joj psunoo paujeaq (e) •axy ire ipu& jspjnui jaq ps^itumoo SBI.[ urejTireqa •yav^ jastu'e^ uopB^g aoipd aip UT \\3~[ pvce oS o^ jsq p3?[s^ os^e tTBjr^ Bjpyeqo -UBqdjo ire. aiuooaq pinoA jsiqSnsp jsq iBip Sui^fes SBM aqs 'sxy ipTA jsq pa^o^n^ SBI[ ure}i lueqa pssnao^ •o ^ip psildsj irBjTH vjipwavQ pue ireji^ •Bjpuei[3 mojj pajinbua aqg •SAT^B avMi sqs 'ireji^i ^jpu^qo psqoBojdd^ sqs uaqA ^BLp Q Bjed m psi^s sqs ''d'O'V ^q uop^uiurexa ssojo uo pus "d'O'VJ0 ^ssnbs-i sq^ fe aipsoq pajepsp S^A aqg •suosjad ST'QT J0 ^00! jo punos avp. ^ou puB Spio uosjad auo jo ^usuiaAOiu^ooj jo punos sip pjesq ST1S 'TPBllIn^M -to ^sjeqj Aq pssn^o 3.I3A ssunCm asaq^ 'ja^sis jsq jo Apoq avp. uo saunfui SJSA sjstp 'poo^q q^TM psqouajp SBA UBJT^ \ ^jpueqo jo ^Cpoq aqj, 'daais joj ^USAV ureS^ sqg •ysisABq Aip ['• f .f .' f has stated village Karsing.Therefore, we do not fmdany substance in the argument 6f Mr.Yadav that this witness was nof in village Karsing. (10) Now coming tb the reliability and admissibility of the evidence of tHis wifness is concerned, it is settled law that the oral dyihg declaration is also adinissible in evidenee, but fhe court is required to satisfy fhat the dying declaration was voluntary, ti'ue and proved to be made tq theiSffitness. In order to test the veracity of the evidenee ofthis witness, qs has been discussed earlier, this witness has categorically stated thaf since last one year or so, she was residing with deceased Chandra Kiran as she was weak, fherefore, the deceased requested her to accompany her to the village of ac&Lised i.e., Karsing, on the reqiiest, she aceompanied Ghandra Kiran. She has categoricaliy stafed tfaat when they reached fo the village of aeeused Dhaniram, he topk them tb the house of Shyamnath, from there they refa-lrned to the house of Dhani Ram, they took th^ir meal and went for sleep . Even she has stated that the wife of accused Maniram, brother of accused appellant, also came in the night and opened the door ofherroom and said to her that 10 - 15 persons canie and they have committed murder. Therefore, her presence in the house is established and she has also stated that she had heard the criesof Chandra Kirah on which she went to Chandra ICiran, at that time she was alive, Chandra Kiran disclosed her that aGcused Dhani Ram has attacked her. In the cross examinafion bf this witness, the defence has ndf beetl able to bring on record ariy circumstance which may discredit her evidence as to why she will depose against the accused in order to implicate him in a false ease, that too, in the raurder of his own wife. She has also stated that Kiran was hot happy with accused Dhahiram, as oHce Dhariiram when he was sleeping- with her sister Sangeeta in compromising position and at that time, Chandra. Kiran slapped Sangeeta, that is' why, even on, the request of ascus^d on the fateful night Chandra Kirah refused to sleep in Uis room; % witness has not been cross examined tjy' defencp regai|ding'oral Chattdra she saw r .tail-resjo auiBVi av[[ fBVQ ps^s s'@t[ sq pUG uopBSpsaAUi joj sS-BniA sq^ cq aureo aonod pue UOTTB}S soiiOd sip ui p3Sp&[ SHA ijodai •e 'pajsp.inui ISBM ITB.ITH iss.pvcevQ 'vev^ pa^s A[dujis s^q ay 'pasnooB SLp jo jaipojq si ip?N m^^IS S'M'CI "U6TIB1S 30tl°d sq^ ui ^iodsj sq^ sSpoi p^ pssnooB q^iASu&iB ^uaA aq ^i.o pa^^s ^I'iuns SBII Z'M'd ^[JBIIUIIS 'SBQ^ung jBAqoyjo .lapJliiui pswivavEioa ssfTfexe^ ^qi pa-t^s'^duiis s^i.q oqA aou'BASlaj ou jo st vasyfBSvvfQ i "M'a jo aouspiAa 3tp uaAg •sa^BXBN Xq psnmxuioo S^A ire.i@ 'e.ipuBi.o jo jap-inm 3Lp ^qi '•O'd'-tO £TSs/n ^uaais^B^s s-cq vi psys^s ywosfe ssq m^.iiLEBp\[ pssnooB-do ai.p USAg •ss^iexeN ax.p Aq psnitampo S-BA -lap-iniu sqi vsv^ ps^eis ^ou ssq sq '"O'd"-13 £T£s/n zuama^-Bis siq m ^nq UB.IT}! BJpUBi.[Q jo -isp-tnui psniuimoo pBq SS^'BXBN ysvff. ^oajjs av^ o-} uopB^g sonod ui ^.lodsj paSpoi p'eq ui^y tirei[a pssnoo'e aip qSnoip USAS '^qi TOOJJ iredv 'sxv iiiiA-t3L[ ps'sio^n^ ssq uiBy itreqa pssnooB ^ip jsq o^ pasopsip 3i[s uaip pire v7[upwevQ paqoBojddB ^s^ipsuimi Xaip pire joop avft psusdo pLre ajsqi SUIBO uiBy iirei^jo SJTA 3Lp 'UBJRI Bptreqojossuo a^ pjesq 'jsyBajaip pire suosjsd g T-0T jo lou 'uosjsd suo jo s^uauiaAOui ^ooj jo punos sip P-resq sqs 'urey TUBI[C[ pssnooB Aq 3viV[sv uo UIQOJ jST.iioue ui daap o"> ^USM 3i.[s usqA 'jnoq UB JIBL[ jsyB ^BLp •:?v pa^s A'l^Bouogs^a s'eq aqg -pasBaospjo .[Sp-inuj sq^ gup^imuioo pire ssnoq aqt UT SuQsjsd ST — OT jo At:(u3 sip SmpJBgsj psopou 3Ateq pinoA 3S1^I[ aures si^ UT guTdssis SBM Qf[A (ot'YtV'd) u-reiSN trejry uatp we-i/fSl B-ipueqo pasiffffiffB ptre .[3AO sureo saii{B3reM ST — OT FBH "SUOSB3.I SuioSsjoj SI.P .icg souajap si.p qsnqKtss o^ 3pf3 ussq ^oy s^q pasnoo^ 3L[^ 'p-iooaj uo aauapTAa sqi uio.ij yn.g •-tosjjs fBVft o^. urey itreL[a AI uaATSs^A '•a'l'jl stp OS^B s^ uop'empui SJSTO aip pu^ weiffl ^-ipuyiO 1° JapJnui aq^. panimuioo pire 4q3iu ^nja^Bj aq^ ui aureo Aaip AI[A ST •fevft 'isv^ .lage aj3A a^doad S^T^BXBJ^ 3tp 's-iojsjai.p '3ii{BXBti>[ ^ S^A aqs '^uaui^jBdsa soipd 3Lp ui s^qB^suoo SB pa^uioddB SB^ UBJT5I'BJpUBl[3 3JOJ8q SB •yavft pssnoo^ avp. Aq pasrej sousjsp aq^ o-} Suiuioo AON (Tl) •^.inoo &LPJO aouapyuoo esjTdsm qoii[A 'm^aN trejT^'OT'M'd ot uop^jepap Sm^p sp^ui irejrn vipvmvQ pss^Sosp atp ^q^ puy \. ••••'. : . • • • . 3A 'ajojajai.tj, -jaq o^ UBJI^ •e.ipueqo Xq ap'BT.a uopBjepsp Suutp -?;:E? E S . ^^ ^ ^s^^^^^j^^^ husband Chandrika was Anit. The naine of father of Anil is Peelsai Sori, who was murdered by Naxalites, therefore, these defence witnesses have riot been able to establish that the incident was committed by the Naxalites. (12) For the foregoing rea.sons, we are of the eoHsidered opinion that fhere is no illegality and infirmlty in the judgment of the trial Court. The conviction and sentence imposed against the appellant are confirmed. <j. (13) The appeal being devoid of merit, the saine is liable to be dismissed and it is hereby dismissed. Sd/. L.C. Bhadoo Judge sd/- Suail Kusnar Smha Judge Roo