XI—HC 78 mmoL mm (WEI) WWW ammm Wm amt (In Jail) V RESPONDENT: {Criminal appeal under Sect Pr‘ Division Bench: Hon’ble Mr. L.C. Bhadoo and Hon’ble Mr. T.P. Sharma, JJ. 23-6-2008 Mr. U.N.S. Deo, Additior respondent. Oral judgment dictated on E L.C. Bhadoo, J: — This appeal is directed against ti sentence dated 2nd April, 2002, p in Sessions Triai No.298/2001, w Judge after holding the accuse offence under Section 302 of t im‘prisonment for Iife and pay a fi fine to further undergo R.l. for one mma‘wm $aff‘aq m age about 45 years, R/o Gram Damaokunda, P.S. Bango, Distt. Korba, C.G. Jersus — State of C.G., Through P.S. Katghora, Distt. Korba. on 374 (2) of the Code of Criminai acedure} isel fOr the appeilant. Miss Sangeeta Mishra, cou [at Public Prosecutor for the State/ aIS. 1e judgment of conviction and order of assed by the Sessions Judge, Bilaspur wereby & whereunder Iearned Sessions ad/appeilant guilty for commission of he l.P.C., sentenced him to undergo 1e of Rs.200/—, in default of payment of month. attacked his wife with an axe which was witnessed by PW-1 Sura'j Kumar Gupta who lodged the report Ex.P-1 in Police Station Katghora to the effect that on that day at about 10.30 a.m. when he reached near his house, he saw that one person was attacking a lady with an axe on her head & hand, blood started oozin‘ out of the injury, she fell down on the ground and by that time some persons came on the spot, on enquiry, he disclosed his name as Itwar Sing‘t and said that he is resident of Bango Gram, his wife has refused to accompany him, therefore, he has attacked her. Receiving this report, the Station ouse Officer, Police Station Katghora registered the F.l.R. Ex.P-1. Wh le in police custody, the accused gave memorandum EXP-2 regarding he place where he kept the axe, the weapon of offence, and in pursu nce of that, he got recovered the axe under Ex.P-3. Site plan Ex.P-4 w s prepared by the Investigating Officer. After giving notice Ex.P-5 to the P nchas, he prepared the inquest Ex.P—6 on the body of Maan Kunwar. Bl odstained soil, plain soil, broken pieces of bangles and one Lungi stai ed with blood were seized by the investigating Officer under Ex.P- The body of Maan Kunwar was sent for post-mortem examination to vernment Hospital, Katghora where Dr. G.S. Kanwar (PW-5) condu ed post-mortem and opined that the cause of death was haemorrhag as a result of shock and injury to vital organ, lung & head, he prepared t e report Ex.P-8A. \ . r¢r,u Cit H . o +1“ ' the gistrate, First Class, Katghora, who in macaw mmawm $aimsnéw accused in the Court of Judicial turn, committed the case to the S ssions Judge, Bilaspur. The prosecution examined six tnesses in order establish the charge against the accused. Statem of the accused was recorded under Section 313 of the Cr.P.C. in w ich he denied the material appearing against him and stated that he is nnocent, he has been falsely implicated in the case. Learned Sessions Judge after he ring the counsel for respective parties, convicted and sentenced the acc sed as aforementioned. We have heard Miss Sangeeta ishra, Iearned counsel on behalf of the accused/appellant and Mr. U. .S. Deo, Iearned Additional Public Prosecutor on behalf of the State/ espondent. At the out set, Miss Sangeeta ishra, has not disputed the homicidal death of Maan Kunwar. Moreov r, Dr. G.S. Kanwar (PW-5) has stated that on 15-6-2001 he was wor ing as Medical Officer in Community Health Centre, Katghora, on that ay he conducted post-mortem on body of Maan Kunwar and noticed t there were seven incised wounds on left side of head & hand, mem rane'was ruptured, clotted blood was present in the brain, right lung w s also ruptured, there was blood in the thoracic cavity, both the chamb of heart were empty. In his opinion, the cause of death was haemo hage, excessive bleeding, shock and 4. —-————— i e h e a Wm..n.nGv ......‘.‘.a. ...'...g2$/ mgoo x WWW frmmm the ocular evidence of Suraj Ku ar Gupta (PW-1) who was running a tea stall on the trolley and has state that on 15-6-2001 at about 10.30 a.m. he was near his house, he saw hat the accused was attacking his wife with an axe. ln view of the ove medical & ocular evidence, it is established that the death of Maa Kunwar was homicidal in nature. As far as complicity of the accusd in the crime in question is concerned, Suraj Kumar Gupta (PW-1) who i an independent eyewitness has stated in his evidence that on the fateful day at about 10.30 a.m. he had gone to bring Samosa, at that time he sa that the accused present in the Court was attacking his wife with an ax as a result of which she fell down. He went and lodged the report Ex.P- in Police Station Katghora. Learned counsel for the applic nt argued that in the first information report, this witness has mentione that some persons came on the spot, whereas in the cross-examinatio he has stated that nobody was present there, therefore, in view of this contradiction, his evidence cannot be believed. ln order to appreciate the argum nt advanced by learned counsel for the appellant, we have perused the .l.R.-and PW—1’s evidence. ln fact, on close scrutiny of the documents nd evidence, we are of the opinion that the‘re is no contradiction as suc . ln the first information report Suraj Kumar Gupta (PW-1) has state that he saw the incident, thereafter, some persons collected. lt is th day light incident, therefore, it is but 1C. 11. XLHC—J 8 m‘lw wmm 12. Kumar Yadav (PW-2), who was working In the nearby hotel, has stated In his evidence that on hearing the commotion he came out of the hotel and saw that the accused was sitting near his wife holding axe in his hand, there was injury on the head & cheek of the lady and blood was oozing out of it. Suraj Kumar Gupta ( -1) in para 4 of his cross-examination has stated that he reached at t e time of incident, there-was no one present, but he has not stated t at after the attack was made nobody came, in fact, in his report he h s mentioned that after the attack was made few persons came on the s ot. Therefore, there is no contradiction in the evidence of this witness, is an independent eyewitness and his presence on the spot cannot be bted, because he has stated that he was running a tea stall on the rolley in the nearby place and he is resident of that area. ln the rcumstances, there is no reason to disbelieve the evidence of this w ness and to that extent Vinod Kumar Yadav (PW—2) has also corrob rated the evidence that hearing the commotion he came out of the h tel, the accused was sitting near the body carrying axe in his hand. n the cross-examination of these two witnesses, defence has not be n able to elicit any circumstance to discredit their evidence. As far as the recovery of axe is c cerned, in the first instance, the crime is est‘ablished by the ocular evid 'nce of Suraj Kumar Gupta (PW-1) & Vinod Kumar Yadav (PW-2), th refore, the recovery of axe at the instance of the accused becomes nsignificant. Even the recovery of axe P h u i W?W CWn..g. .. @4206 L m m (Wu) mmm WWIYWW *aimm ai ihv ins'mnv: mum: aubused i: doubtfui because, ’VinOWKUITféT‘YadaV .’(PW—2) h'as étated in his evider ce that the accused was sitting holding the axe in his hand, whereas, C.P. Bhatt (PW—6), the Investigating Officer, has stated in his evidence that the accused while in poiice custody gave memorandum Ex.P—2 that he as kept the axe in the corner of hill, _whereas Vinod Kumar Yadav ( W-2) has stated that the accused was sitting at the spot hoiding the by that time, the Poiice had aiready reached. In view of the abov contradiction, recovery part cannot be believed because the prosecuti n has not been able to prove that fact beyond reasonable doubt. 3. No other point was argued by le rned counsel for the appellant. 4. In view of the ocular and medica evidence, we are of the opinion that the prosecution has been successf l in establishing the crime in question against the accused/appellant, b ’yond reasonable doubt. We do not find any illegality and infirmity in the gment of the trial Court. U1 Wmfw " wmm In the result, the appeal being devoid of merit is liable to be dismissed h e j d and it is hereby dismissed. Sd/— Sd/- L.C. BHADOO T. P. Sharma Judge Judge