^,\ fi "e!iEn?sl!SS WGSLCQWtTOP CHHATTISGARH AT BILASPUR DIVISION BENCH CORUI; APPBLLANT RESPONDBNT HON'BLE MR. T.P. 8HARMA & HON'BLB MR. R.L. JHANWAR. JJ. Criminal Aopeal No. 213/2003 VER8US TSamo Tandi State of Chhattisgarh JUDGEMENT FOR CONSIDERATION Sd/- R.L. Jhanwar Judge Hon'ble Mr. T.P. Sharma J. Sd/- T.P. Sharma Judge Post for Judgment on: ^ 1^1 2010 Sd/- R.L. Jhanwar Judge -'. •a.BBti HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCM: HON'BLE SHRI T.P.SHARMA AND HON'BLE SHRI R.L.JHANWAR, JJ. Criminal Appeal No. 213/2005 APPELLANT (in jail) Kamo Tandi, S/o Kartik Tandi, aged about 45 years, R/o Dulari Nagar, P.S. Tikrapara, Raipur, District Raipur (C.G.) VERSUS RESPONDENT <!'. :,:;': State of Chhattisgarh CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CRIJVUNAL PROCEDURE CODE •:^^ Appearance: Shri H.P. Agrawal, counsel forthe appellant. Shri Arun Sao, G.A. for the State. JUDGMENT Per R.L.Jhanwar, J. (Passedon ^,12.2010) y The appellant stands convicted under Section 302 ofthe I.P.C. and sentenced to life imprisonment with fine of Rs.4000/- and in default to undergo further R.l. for 6 months for commission of culpable homicide amounting to murder of his wife Preeti @ Poratik and son Vishnu Tandi vide judgment of conviction and order of sentence dated 31.01.2005 passed by 11' Additional Sessions Judge (F.T.C.), Raipur in S.T.No. 380/2004. 2. Brief facts of the prosecution case, in a nutshell, are that on 15.07.2004 at about 3.30 a.m. the appellant assaulted his wife and son with a wooden piece (Tf^ir) attached to Rickshaw and caused injuries on their heads' when they were asleep. The incident has occurred in the house of the appellant situate at Dularinagar, Raipur. Incident was reported at Police Station Tikarapara vide Ex.P.6 and on the basis of which crime No. 258/2004 for commission of offence punishable under Section 307 of the I.P.C. was registered. Merg intimation thereof was recorded vide Ex.P.1 (Preeti Tandi) and Ex.P.2 (Vishnu Tandi). ,;tB Investigating officer left the scene of occurrence and after summoning the witnesses vide Ex.P.10 A and Ex.P.11A, inquest over the dead bodies was prepared vide Ex.1s>.12 and Ex.P.13. Dead bodies were sent for autopsy to Dr. Ambedkar Hospital, Raipur vide Ex.P.28 and Ex.P.29. Dr. Ulhas Gonnade P.W.9 c&nducted autopsy vide Ex.P.15 and found the following injuries caused on the body of Preeti @ Portik: 1. Lacerated wound of 1 cm x 0.8 cm. x bone deep was present over the left eyebrow, behind left ear over temporal bone and its size 3 cm. x 2 cm. x Bone deep. Skin and Back of left ear were crushed and cartilage was torn. <( 2. 3. ISBSI^ Stitched wound of '3 cm. was present at left maxillary fracture along zyqomatic process, underlined bone was fractured. Irregular stitched wound 5 cm, 2 cm, and 1 cm. in the form of number '3' was present over left temporal region and stitched wound of 1 cm. was present at left lobule. On internal examination of the body, it was found one depressed fracture of 12 cm. x 6 cm. over left temporal part of skull extending in linear fracture upto teft side of cranial fossa & middle cranial fossa in oblique. Hemorrhage was present all over the brain. Doctor opined that death of Preeti Tandi was due to cardio- respiratory failure as a result of head injury and its complication. Lacerated wound and fractures were caused by hard and blunt object with force. Likewise, Dr. Ulhas Gonnade P.W.9 also conducted autopsy vide Ex.P.14 on the dead body of Vishnu Tandi and found the following injunes: 01. 02. 03. 04. One lacerated wound of 10 cm. x 1 cm. x bone deep was present in saggital brow started from lateral part & right eye, just behind and at right side at parieto occipital area 'L' shaped lacerated wound was present admeasuring one transverse limb of 5 cm. & vertically oblique limb of 6 cm. with maximum width of 1.5 cm. x bone deep. A lacerated wound of 5 cm. x 1.5 cm. x bone deep was present and at lambda 5 cm. x 1.5 cm. x bone deep, underlined bone of tempero parietal region upto lambdoldsuthe. Hemorrhage was present all over the brain. Right black eye was present. Abrasion of 0.3 cm. width linear from left part of chin to linear half'bridge of nose and on left side lacerated wound of 7.5 cm was present between upper lip and lower lip. All wounds are ante-mortem in nature. Deafh was due to shock and hemorrhage as a result of injury. ,j ^t. Wft !i:ij V' During investigation, accused was taken into custody. The accused made a disclosure statement of^Ex.P.18 by virtue ofwhich weapon of offence i.e. wooden piece attached to Rickshaw was recovered from him vide Ex.P.20. Bloodstained cloths of the deceased were seized vide Ex.P.9. Plain soil and bloodstained soil were seized from the spot vide Ex.P.19. Spot map was prepared tride X.P.25. Merg was also recorded vide Ex.P.26 and Ex.P.27. Seized artictes were sent to Forensic Science Laboratory, Raipur vide Ex.P.30 and blood was confirmed on the wooden piece and other articles. <( 3. Statements of witnesseswere recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Raipur, who in turn committed the case to the Court of Sessions Judge, Raipur. The learned Additional Sessions Judge received the case on transfer for its trial. 4. In order to prove the guilt of the accused, the prosecution examined as many as 16 witnesses. Accused was also examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded his innocence and false implication in crime in question. 5. After affording opportunity of hearing to the parties and after appreciating the evidence available on record, the learned Additiona] Sessions Judge convicted and sentenced the applicant as aforementioned. 6. Learned counsel for the appellant as well as respondent/State are heard at length. Perused the impugned judgment and record of Court below. \. 7. Shri H.P.Agrawal, learned counsel appearing for the appellant vehemently argued that conviction of the appellant is substantially based on the evidence of P.W.6 Ku. Santoshi, whose evidence does not inspire confidence, trustworthy and is also not safe to rely upon becauseshe is a tutor witness. Blood group was not proved by the prosecution. No independent witness was examined by the prosecution. Seizure witnesses have not supported the seizures and memorandum of the :'".^-;v, 1 ~'" J .litifei Ifillp1 appellant and they have turned hostile witnesses. Learned Court below has wrongly believed the evidence of Investigating Officer. Motive of the \ appellant has not been proved by the prosecution and there is no evidence on record that to show that the appellant had committed heinous offence of his wife and son with motive. The evidence of the prosecution may be sufficient for casting doubt that the appellant may have committed the offence but is not sufficient for proving the fact that the appellant has committed murder of Preeti and Vishnu Tandi. Lastly, he argued that if the evidence of the prosecution is taken at its face value, then the act of ^- the appellant comes within the.'^mbit of Section 304 Part 1 of the I.P.C. and nof under Section 302 of the I.P.C. The learned lower Court has erred in not appreciating the evidence properly, resulting into his conviction. On these premises, learned counsel urged that the appellant be acquitted of the charge. 8. On the other hand, while supporting the impugned judgment of conviction and order of sentence, Shri Arun Sao, learned counsel for the State argued that evidence of child witness i.e. P.W.6 Ku. Santoshi is sufficient for convicting the appellant and also weapon of offence i.e. wooden piece (ifv; k) by which the appellant had committed two murders and was later on recovered the same at the instance of the appellant vide Ex.P.20. At the time of incident, the accused was present in the house, along with him, his wife and children were also present in the house and his wife and son were killed, therefore, an inference can easily be drawn against the appellant that he had committed the murder and except him no one had committed such heinous offence and also no explanation was forthcoming as to how his wife and son were murdered. After appreciating the evidence available on record, the Court below has rightly convicted and sentenced the appellant on the basis of evidence of Ku. Santoshi P.W.6 and memorandum ofthe appellant. 9. In order to appreciate the arguments advanced by the learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injuries onthe deceased Preeti and Vishnu has not substantially ,been proved by the appellant, but on the other hand also established by the evidence of Dr. Ulhas Gonnade P.W.9 and his, autopsy reports Ex.P.14 and Ex.P.15 and death was homicidal in nature. ..^^ 10. As regards complicity of the appellant in crime in question, the conviction of the appellant is substantially based on the evidence of child witness Ku. Santoshi P.W.6 since she was present in the house. As per Section 118 of the Evidence Act, all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme 81d age, disease, whether of body or mind, or any other cause of the same kind. In case of child i.e. person of tender age, if he is not able to understand the questions or not able to answer the questions then he would not b^''competent witness. In order to ensure whether a child of tender age [s competent witness or not, the Court is required to satisfy itself that whether he or she understands that it is his/her duty to speak truth, he or she has sufficient understanding to testify his/her evidence being heard and, he or she understands the questions put to him or her as a witness and give rational answers to them which can be understood. In this case, upon rational answers to some questions being asked, the Court was satisfied that she can understand the questions put to her and thereafter the concerned Court proceeded to examine child witness Ku. Santoshi P.W.6, who, in her evidence, has deposed that her father is a Rickshaw Puller and used to consume liquor and to quarrel with them. Her mother was working in a house as servant maid whereas her brother was working in a hotel. She has further deposed that the incident took place at night and her father got up and after taking wooden piece (ifv; k) attached to Rickshaw assaulted her mother and brother over their heads and at the time of assault by her father she witnessed the entire incident. Thereafter, she raised cries for help. After hearing her cries neighbours came to the spot. After causing such injuries, her father went to take bath and thereafter tried to hang himself but at the same time police personnel came and took the appellant along with them. In her cross-examination, she has further deposed that she is in the habit of sleeping at 800 p.m. to 9.00 p.m. and gets up at 6.00 a.m. She has further deposed that on the date of incident she already took asleep at 6.00 p.m. in the evening and got up at 6.00 a.m. She did not deny that when she got up there were persons already gathered there. In paragraph 5, she has also deposed that she went to her uncle's village where some person told her that they would go to the Court and to give deposition. She has also deposed that what she has stated in the Court is l^:m Ittt^ as per statement of that person. She also did not deny that she was asleep; therefore, she was unaware of the incident. However, from the above evidence, this faet cannot be discarded that on the date of incident, the appellant was present inside his house. P.W.4 Vijay Singh, who is one of the neighbours of the appellant, has deposed that upon hearing the cries of Ku. Santoshi P.W.6, he went to the spot and found P.W.6 Ku. Santoshi was weeping affd told entire story to him and stated that her father committed murder of her brother and mother. This was also supported by Banwari P.W.5. He also found that Preeti Tandi and Vishnu Tandi were in pool of blood ^fnd there were injuries over their heads. Thereafter, he along with Banwari and other person went to police Station and lodged F.1.R. vide Ex.P.6. This witness further deposed that on fateful day itself he asked Ku. Santoshi about the incident, whereupon she deposed that her father i.e. the present appellant has committed the murders of her mother and brother. A perusal of his entire cross- examination would reveal that he did not deny the suggestion that he was informed by Ku. Santoshi who told him that her father has committed murders of her mother and brother. The evidence of P.W.4 Vijay Singh is somewhat supported by the evidence of P.W.5 Banwari, who was also present on the spot upon hearing cries of Ku. Santoshi P.W.6. 11. In this way, it is clear that on the date of incident P.W.6 Ku. Santoshi has witnessed the incident and immediately stated about the incident to Vijay Singh P.W.4 and P.W.5 Banwari and they deposed in Court. Thus, it is clear that on the date of incident accused was present in his house with his wife Smt. Preeti Tandi and his son and Ku. Santoshi and according to Ku. Santoshi, the appellant killed his mother and her brother. Ku. Santoshi has witnessed the incident and stated that her father has killed her mother and her brother but accused has not taken any defence about this and only stated that he innocent. Offence was committed in secrecy within the knowledge of the appellant, but he has not made any explanation in terms of Section 106 of the Evidence Act, though as held by the Supreme Court in the matter of Trimukh Maroti Kiran v. State of Maharashtra, (2006) 10 SCC 681, he was under obligation to offer explanation that how his wife and son who were present with him in his house, died and who has caused injuries to them. ^lill 12. So far as seizure of wooden piece attached to Rickshaw is concerned, it was seized according to Ex.P.20 on the disclosure statement of accused vide Ex.P.18. Witness P.W.11 Krishna though has not supported the seizure ofwooden piece and statement ofthe accused, but his signatures are on those.papers. This shows that he was present at the time of memorandum and seizure. Seizure of wooden piece was proved by Sub-lnspector and Investigating Officer Laxman Kumethi P.W.15. While dealing with the question of evidentiary value of police officer, the Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskarv. State of Maharashtra, AIR 1,^96 SCW 2943, has held that witnesses being police officers does not by itself create a doubt about their creditworthiness. In this way, it is clear that the accused did not offer any explanation about the murder of his wife and son although he was present in his house at the time of incident. He did not report the incident immediately to police or anybody and did not take any defence. This shows that the appellant was the person who committed the heinous offence of murder of his wife and son inside the house. Eye witness Ku. Santoshi is his daughter who stated the entire incident clearly and also supported by P.W.4 Vijay Singh and P.W.5 Banwari and at the instance of appellant, the wooden piece which was used in murder, was seized from the accused/appellant. In this way, prosecution has clearly established the charge. 13. On appreciation of evidence available on record, the learned Court below has rightly convicted and sentenced appellant as aforesaid in paragraph 1 of this judgment. 14. On close scrutiny of the evidence, we do not find any infirmity or illegality in the impugned judgment requiring our interference. 15. Consequently, the appeal being devoid of merit and substance, is liable to be and is hereby dismissed. Sd/- T.P. Siiarma Sd/- R.L. Jhanwar Judge