HI6H COURT OF CHHATTIS^RH AT BILASPUR DIVISION BENCH: HON'BLE MR. DHIRENDRA MISHRA & HON'BLE MR. R.N. CHAN&R^K^R. JJ APPELLANT (Injaii) CRIMINAL APPEAL N0.916/2005 (CriminQl Appeal U/s 374 ^ of Cr.P.C.) Rai Singh 9ond, son of Mohar Singh Gond, .. aged 33 years, resident of Village Padwari, P.S. Chandni, District Surguja (CG) Vs RESPONDENT State of Chhattisgarh, Through P.5.- Chandni, District-Surguja (CQ) Present: Mrs. Savita TiwGri, Advocate for the appellant. Mr. Ashish Shukb, Sovt. Adyocate for the respondent-State. ORAL JUD6MENT (<;<i-- Uctober, <:uus/) Dhirendra Mishra. J: 1. Theappellant has preferred this criminal appeal under Section 374 (2) of the CrP.C. aaainst the judgment of conviction and order of sentence dated 29.10.2005 passed in S.T.No.520/2004 whereby learned 2nd Additiona! Sessions Judge, (FTC)/ Surajpur, District Surguja has convicted the appellant under Section 302 of the IPC for causing homicidal death of Dhansariya Bai and sentenced him to undergo life imprisonment and fine of Rs.lOOOA, in default of payment of fine to undergo SJ. for one month. 2. Case of the prosecution, in brief, is that the appellant suspected that his step mother was practicina witchcraft and on account of aboye suspicion he murdered Dhansariya Bai by assaulting her with an axe on 18.11.2003 at 4.30 p.m. Complainant Rajan Singh (PW-1) lodged the FIR of ExP-1 Ggainst the appeljant. After registering the offence, the po!ice proceeded for scene of occurrence and performed inquest oyer the dead bodv of deceased vide ExP-3 in the Dresence of witnesses. bead body was sent for autoDsv to Community Health Centre, Chandni vide Ex.P-16 where Dr. AM. Siddique (PW-8) conducted postmortem and aave his report of Ex.P-17» On the basis of memorandum of Ex.P-7 ^ ^ of the appellant, hiswearing apparels and weapon of offence-axe/ were taken into possession vide ExP-a8 & P-9 respectiveEy. SeaJed packet containEn9 clothin9 of the deceased receiyed from the hospital were taken into possession vide Ex.P-12. Seized articies i.e. ptain soil, blood stained soii, weapon of offence, oxe, wearing apparels of the deceased & the appeltant were sent for chemical exGmination to FSL, Raipur vide Ex.P-14. However, report of the FSL has not been produced before the tria! court. 3. After compieting investigation, charge sheet was filed in the Court of the iearned -Judicial Magistrate 1st C!ass, Surajpur, who In turn committed the case to learned Sessions Judge, Ambikapur from where the learned Additional Sessions Judge received the case on transfer for triai. Learned trial Court framed chGrqe under Section 302 of the IPC Ggainst the accused/appeilant, who abjured his guilt, The Drosecution, in order to establish the charae aoainst the accused/ aDDellant. examined ten witnesses in all, Thereafter. statement of the accused/appelbnt was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing aaainst him in the prosecution case and pleaded innocence & false implication. However, he did not examine anv witness in his defence. 4. Learned trial court after hearing the arguments of learned counselfor the respectiye parties, convicted and sentenced the appelhnt herein, as mentioned in para-1 of the judgment. 5. Homicidal death of deceased DhansGriya Bai is not in dispute. Even otherwise, from the evidence of eyewitnesses Rajan Singh (PW-1) <& Mangal Singh (PW-3), who have deposed that they saw the appeliant assauiting the deceased with the axe, and further from the evidence of br. A.M. Siddique (PW-8), who conducted postmortem over the person of the deceased, proyed the postmortem report of ExP-17 wherein he found following injuries on the person of the deceased and opined the cause of death as asphyxia as a result of haemorrhagic shock due to excessive bieeding as a result of imuries present over 1+ie head of the deceased and the same was homicidai in nature, the homicidal death of deceased Dhansariya Bai is established. INJURIES SUSTAINED BY THE DECEASED: 5 Incised wound over the left side of the head of the size 10 cm x 3cm x 4cm. 8 Incised wound over the left side of the face of the size 4cm x 10 cm x 1.5 cm. • Incised wound over the left side of the face of the sizc. 5cm x lcm x 1.5cm. »Incised wound just below the ieft maudible bone of the size 5cm x 1.5 cm x 2 cm. B Incised wound oyzr anterior surface of the neck. Hyoid bone is also rijured< a Incised wound over lower portion of anterior surfGce of the neck. 6. Learned counsel for the appellant argued that the trial court has convicted the Gppelbnt on the basis of evidence of Rajan Singh (PW-1) A Manaal Singh (PW-3), who are eyewitnesses of incident. However, from their eyidence it is evident that they are not the witnesses of incident and they deposed as tutored by their advocate. 7. On the other hand, leGrned counsel for the State has supported the impuaned iudament- 8. We have heard learned counset for the parties, We have perused the record of the trial Court as also the imDuqned judqment. 9. It is not in dispute that the appeltant is step son of the deceased, whereas. Kajan Sincih fPW-1) is the son of deceased Dhansariya Bai^ 10.In sum cmd substance the evidence of Rajan Singh (PW-1) is that when he returned from the forest around 4.00 p.m* on the date of incident, he saw the aDDellant assaultincs his mother with axe. After her mother fell on the ground, the appellant chased him also, whereupon he ran towards the forest ond only after the appetlant went towards other side he returned home and found his mother dead. He saw injuries oyer her head and neck. His father had also witnessed the incident. Mcxngal Singh (PW-3) was present with his father. He has further stated that the apDe!bnt suspected that his mother was practicina witchcraft and \ '^1 therefore, he assaulted her. He lodged the report (Ex.P-1) on the next day at 10,00 a.m. This witness has also proved the spot moip of Ex.P-5 prepared by the police, memoroindum of appellant ExP-7 and seizure memo of Ex.P-8. On the request of the Prosecutor, the trial court permitted to put leading question with regard to seizure of axe and clothing on the memorandum of the appellant, This witness has been cross-examined by the defence Gt iength. In the cross-examination though he has stated that his advocate ife^""' Ramesh Pathak had explained them as to how depose in the court, howeyer, on the Courfs question, he stated that he has deposed the facts which he had seen and heard. The defence has not been abie to elicit anythina En his cross-examination which makes the evidence of this witness untrustworthy or unreliable. 11. Heera Singh (PW-2) is the witness of subsequent conduct of the appellant after the incident. However, this witness has not supported the case of the prosecution and he has been declared hostiie. 12.Mangai Singh (PW-3) is also an eyewitness of the incident and he has categoricaily deposed that on the date & time of incident he was sitting with deceased DhanSGriya Bai and her husband in front of their house. They were walting for KajQn Singh, who had oone to the forest. At that time Rai Sin9h came there and started assaultin9 Dhansariya Bai. He WGS assaulting her by an axe. Father of the appeilant namely Mohar Sinah raised alarm whereuoon the aDD©!Iantchased his father also. This witness has been cross-examined by the defence, however, he stuck to his examination-in-chief. 13. After close scrutinv of the evidence of above two witnesses, we are of the opinion that their eyidence inspires confidence and they are eyewitnesses of the incident. Their version is further corroborated from the medical eyidence in which six incised Enjuries over the head, neck and face of the deceased have been found. Their yersion is also corroborated from the FIR of Ex.P-1 lodaed bv comDlaincxnt Raian Sinah (PW-2). ^ Roshan/- 14.After 9oing through the impu^ned Judgment we are of the opinion that the learned trial court, after considerina overatl evidence available on record and relyina upon the eyidence of eyewitnesses, held the appellant 9uiity of the offence. 15. On the basis of aforesaid anatysis; we are of the opinion that the trial court has rightly held that the prosecution has proved its case beyond reasonGbIe doubt against the appeliant. There is no substance in this appeai, the same deserves to be dismissed and is, accordingty, hereby dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge