IN THE HONOURABLE CE-il-iATTlSGARH HIGH COURT OF JUDICATURE AT BIIASPUR criminaIAppeamo. [g] mm. (cmmNAL gPPEAL ms 374 (2} cr. P, c. 1m) Appenant: Lienga S//nAyatoo, aged abou£ 32 years, Rio Samupara, Belar, Lohandiguda: Dist: Jagadaipur, CfiHatiisgarh. RESPONDENT: State of Chhamsgarh mmugh r Jagdaipur, Chhattisgarh. VerSus Police Station: Lehandiguda‘ gist: €79 . §¢x§° ‘ Ga&°Ap judgement pea! ills dateti 374 2). 1"4.@200l . bf £12”luv ‘ l pmcedure cudE 1.973 against the MW” elivered by the cuurt 9f Additional ’ §ssions 34.! 2000. Judge (Special Court), Jagdalpur, in Sessions Trial Case no. . § XI—HC—78 W 200/ Wm (W) mafkrm WW§WW > éaww Thi$ appeal is directed against" of sentence dated 14.9.2000 passed'b3 34I’00 whextby the learned Special Jud he judgment of conviction and order Special Judge, Jagdalpur in S.T.No. ge alter holding the accused/appellant guilty for commission of the offence Code, sentenced him to undego 'impris nm ent for life der Section 302 of the Indian Penal P.T.O. HIGH COURT OF "HHATTISGARH DIVISION BENCH HON. SHRI L. Criminal appeal no. 161 of 2001 Appellant Denga Versus Resp undent State of (Ihham'sgarh Present Mr. Shailendra Dubey, couns for the appellant Mr. G.D.V Vaswani, Additi nal Public Progecutor for the Statefrwpondent. ORAL JUJGMENT (12.11.21m6) Per L.C. Bhadoo. J' XI—HC-78 33W,W16,W 4944/ 81 200/ . M Wmoo~oo000ooooo..0o...¢ mm (W) husband, therefore, accused Denga that he will kill him. On the previ and informed her that there was some had gone to the house of her ailing irrigation water. In the evening she at about 7.00 pm. when she was l ‘ returning to her house: she s'aw that house carrying axe in his hand. that her husband was lying dead in 1 he Verandah, blood was oozing out of right side of the neck. Denga has committed the murder of her husband by assaulting him with axe on his neck. Report (EXP/l) investigation ofreei prepared the inquest report (EXP/7) c into possession plain and bloodstair under EXP/4. While in police eus (EXP/2) regarding the place where thr [ii/An, P.T.O. ed to quarrel and threaten her husband day her husband came from the field quarrel with Denga in connection with accused was running away from her e she stepped into her house she saw n daughter to enquire about her hea After registering the First Information left for the scene of occurrence and f the body of deceased Maso. He took ed soil from the place of occurrence tody the accused gave memorandum ; weapon of oEence i.e. axe was thrown o W $Im WWm ff 11R?W mmm mmwm 1— aamm 2. Case of the prosecution: in briaf, is that Bitai, BaL wife of the deceased: lodged a report (EX.P/1) in the Police Station — Lohriguda to the eEect that she is the resident of village Belarsamupara, accused Denga used to divert the course of water toward} his field which was objected by her XI—HC-78 Wm 03'6”” a1 200/ mm (13W) WW#‘@W mmmm ‘- 3 —' ' %3I%H311%sr by him, in pursuance of that he got recoverad the axe under Ex.P.’3. One White shixt of the accussd stained with blood was seized under EX.P/5. Dhoti of the deceased was taken into possession under EXP/15 which was sent for examination to the doctor under Ex. /12-A, and the doctor opined (EXP/12) that the same be sent to chemical e aminer to ascertain the nature of stains and the group of human blood. The lothe of the accused and the weapon of oEence i.e. axe were sent to the doct r for examination under EXP/16 & P/17 respectively, and the doctor gave hi opinion that these articles be sent the chemical examiner to ascertain the n ture of stains and type if human blood. Site plan (EXP/l3) of the place of occurrence was prepared by the investigating omcer. Body of de eased Maso Was sent for postmortem examination to Primary Health Cen e, Lohriguda Where Dr. Virendra Singh Thakur (PW-6) conducted postmo em and noticed six incised wounds on face, shoulder, skull, chest and opined that cause of death was hemorrhage and shock as a result of injury No. l. Bloodstained and plain soil, axe, shirt of the accused and Dhoti of the deceased were sent to Forensic Science Laboratory, Raipur for chemical ex amination from where report (EXP/18) was received. Aher completion of usual investigation charge sheet was filed in the Court of Chief Judicial Magistrate, Jagdalpur who in tum committed P.T.O. XI—HC—78 mu 3¢1 HW,WW,W mm 1H 200i Wm (W) WWW WWW mmmm ~4_ WW§MW éawm S. We have heard Mr. Shailendra Dubey, learned counsel appearing on ' behalf of tha accussd/apyellant and IV [r. G.D. Vaswani, learned counsel for the State/respondent. the case to tha Sessions Judge: Jagdalp1 1r. Th6 learnad Special Judge receivcd the case on transfer for trial. lish the charge against the accused 3. ' Prosecution in order to 6stab examined seven Witnesses. On the other han¢ statement of the accused was recorded under Section 313 of the Cr. appearing against him in the prosec innocent and has been falsely implicat two defence witnesses namely Ch defence to prove that there was no ispute between the deceased and the accused in connection with irrigation RC. in which he denied the material tion evidence and stated that he is in the crime. The accused examined (DW-l) and Sannu (DW-Z) in his ring learned counsel for the respective 4. Learned Special Judge after hes parties convicted and sentenced the acc used as aforementioned. ater. a d?sd 53>; ~ w i; P.T.O. Xi—HC-78 MW,WE,W WW a1 200/ WWGFW) mmm WW§wW WWW WWW ~ g- $Wm w! {5. Mr. Dubey has not disputcd the ‘homicidai death of decsased Maso. Rpm from that, frum the evidence of PV‘V-6 Dr. Virendra Singh Thakur Who ‘ {nonducted postmortem on the body of‘ deceascd Maso, noticed following 1 nJurles ’niuries noticed by Dr. VS. Thakur {PW-6} on the 49g! bndv ofMaso 1. incised wound with compmndfracture 10 cm x 4 cm x bone deep axtendinghom the right cheek to right side ofthe neck; 2. two incised wound on the right side afthe neck in the size 0f 10x2x.4cmand5x1xr4cm; 3. one incised wouhd on the right shoulder, bone beneath this injury wasfractured, in the size ofg x 2 cm; 4. lwo incised wounds in thé size of6 x 2 x .6 cm and 5 x l x .7 cm. on the back ofthe right arm: 5. one incised wound on the occipital region, bone beneath it was nactnred, in the size af10 x 5 cm; 6. one incised wound beside the injury No. 5 in the size of8 x I cm; 3) one incised wound on the left side ofthe chest in the size of4 x .3x.2 cm. P.T.O. XI—HC—78 mw,m;m mm~m‘&oo....oo..o . ' ’ I /g/ w 200/ mm(1#iaaau) WW§WW' WWW "* amaqm All the injuries were ante mortem in nature which could be caused by any hard and sharp object within 12 hours before the death. It was homicidal in nature.‘ Death was due to injury N0. I. He opined that cause of death was hemorrhage and shock due to the ‘njuries particularly injury No. l. In View of the medical evidence, the omicidal doath of Maso is established. #3:» As far as involvement of the amused in the crime in question is oncerned, learned counsel for the accused/appellant submits that in this case e conviction rests on the circumstantial evidence. Nobody has seen the ccused attacking the deceased and the evidence of PW-l Bitai Bai, wife of saw the accused coming out of her ' g axe in his hand. He also argued ged belatedly as the incident took place on 21.9.1999 whereas the report was lodged on 22.9.1999 at about l2.15 noon. He also submitted that as f as the circumstance of recovery of it is not sulficient to connect the accused with the crime in question partic larly in the absence of any report of ‘§erologists regarding the origin of bloo found on these articles. He further e deceased is not worth reliance that ‘ i s house and running away from there c 1 1hat the First Information Report was bloodstained shirt and axe is concerne / P.T.O. XI—HC-78 HW,WE,W Wm MGM! a1 200 I WW (WW) WWW mmm WW#‘@W mmwm aawm *;_ contended that the prosecution has not been able: to ostablish that thore was any disputc betwacn the doceasod and tho accused in connection with irrigation water. He further submitted tiat there is no evidence to show that the deceased raised cries on being assau ted by the accused and no neighbour has been examined in the regard. 8. On the other hand: Mr. Vaswani Additional Public Prosecutor for the State/respondent supported the impugne‘ 1 judgment of the trial Court. 9. As far as the question of delay ' lodging the FIR is concerned, the crime in question was committed on 1.9.1999 at about 7.00 pm. in the evening and the report was lodged by W-l Bitai Bai, wife of the deceased on the next day on 22.9.1999 at about 1 .15 hours. As per the FIR the police station is at the distance of 9 km om the place of occurrence. The complainant being a lady whose husban was murdered was not in a position to go to the police station in the night, hich was admittedly 9 km away from the place of occurrence. Even otherw se, this witness has not been cross— examined on this aspect as to wheth the delay was caused in order to implicate the accused in a false crime. erefore, the argument advanced by z l i i P.T.O. XI—HC-78 WWW mmm ‘ mmm “6, WW%NW %31%wm 10. It is true that there is no ocular the accused msts on circumstantial ex establish. the involwment of the acc; Jsed in the crime in question on the following cimumstances, learned counsel for the accused/appell with an intbntion to implicate the accusted in a false crime is not acceptable. a dispute between the accused and her the accused has stated that there was Water. PW-3 Lakhmu: father of the husband in connection with in‘igation P.T.O. oL xi... ,t WW 811‘ 200/ WW(W) lam that the FIR was lodged belatedly evidence in this case and conviction of idence. The prosecution has tried to (i) that there was a dispute between the deceased and the accused in connection with irrig ition Water; (ii) that the accused was seen by Bitai Bai (PW-1), Wife of the deceased, coming out 3f her house and running away from there in hand; carrying axe hid hand; (iii) that the weapon of oEitnce axe was seized at the instance of the accused; and (iv) that the blood was found on the axe and the shirt of the ‘ accused. 11. As far as the first circumstance is concerned: PW-l Bitai Bai, wife of XI—HC~78 WmQ41::f.9.’.’../.;6 a1 200/ mam mmm mmwm - 9‘ WW§MW QEWW accused in paragraph 2 of his evidmm : has also stated that their agriculture fleld of Maso. There was a dispute fields ara adjacent to the agiculture regarding im‘gation water betwcen Gadru has also stated that the agric ture fislds of Maso and Denga are adjoining and there was a dispute reg cling irrigation water between the two. However, in reply to a question in thi there was no dispute with the deceased‘ contrary, the father of the accused has that there was a dispute between the tt as their agriculture fields are adjacent. stated the same thing. Therefore, the disbelieve the evidence of the above ‘ evidence that there was a dispute betv connection with irrigation water and as successfully establish the first circums father of the accused the evidence o: confidence. so and Dcnga (the accused). PW~4 ‘/) regard the accused has just said that in relation to irrigation water. On the categorically admitted in his evidence v0 in connection with irrigation water Even the wife of the deceased as also :re is no reason before this Court to witnesses who have admitted in their Ieen the deceased and the accused in such, the prosecution has been able to :ance. In the presence of evidence of f defence witnesses does not inspire m - 'xti Wm (W) P.T.O. g; XI-HC—78 o C/fH/é/ mm a1 200/ mm (W) mwfim‘a; WWW WW§WW mmvfsam $Wm§m ”10’- It is true that this witness in h r cross-examination has stated so but so far as this defence is concerned. in e first instance the accused has himself deniad his prasence nsar the house o the d6ceased and also the fact that thcre was a dispute between the deceased d himselfin connection with irrigation water whereas the dispute between deceased and the accused regarding 12. So far as the second circ ance is conccmed, there is only one u t witness L6. PW—l Bitai Bai! who h s stated that on the fateful day in the evening she had gone to the house of er ailing daughter to enquire about her health. When she came back to her house, she saw that the accused was coming out of her house carrying a e in his hand. When she entered the house she saw that her husband Ma o was lying dead in the Verandah and blood was oozing out of his neck. L amed counsel for the accused/appellant cross examination of this witness contended that this witness has d that she does not know whether s e somebody else would have cOme to h r house during the period when she leh the house and before she returned, o her returning to home she saw that the accused was coming out of her hous , therefore, there is every possibility of any third person entering into the hou e of Maso and committing his murder. drawing attention of this Court to l P.T.O . e e XI—HC-78 mm a1 200/ WW(WW> mmriim? mmm mmmm “II,— WW w®I§K %a%ua11%w irrigation wzwr has aheady been categorically stated in her evidence th her house carrying axe in hand and w Ien she went inside the house she saw her husband lying dead in the veran crime in question, the accused could h of deceased Maso which was witness same in toto, which is a stmng cir guilt of the accused. Therefore, the p esence of accused while coming out of the house of the deceased at the time f incident is established. Moreover, it is not the case of the accused that the deceased was having inimical relation with somebody else, therefore, any ‘ d person would have committed the murder of Maso. established. Bitai Bai (PW-1) has at she saw the accused coming out of . Had any third person committed the e explained his presence at the house d by Batai Bai instead of denying the stance unerringly pointing towards the WW, W,’i§m l3. As far as the argument of lea med counsel for the accused/appellant that there is nothing on record to show accused assaulted him and that no pe. Maso has been‘examined. is concernc 7d, though the investigating ohicer has not been cross-examined on the point that there are some houses adjacent to the house of deceased, in the site plan (EX.P!13) it has not been shown that that the deceased raised cries when the tson of the neighbourhood of deceased l l ,n P.T.O. '\F:si t c XI—HC—78 HW,E?WE,W Wm CaiEaéQLHN. a1 200 / mW<W> WW§WW Ewmwm cm, %aa%wan%31 there are some houses adjacent to the house of deceased, therefore, no inference can be drawn that the persons are residing ir'1 the neighbourhood of the deceased and they have not been examined. No such suggestion was given to PW-l Bitai Bai in her crosn examination. Thus, the argument advanced by learned counsel for the accused/appellant in this respect is of no sigiificance. 14. As far as the recovery of weapon of ohenee axe at the instance of the accused is concerned. PW-2 Durjan has stated that memo (EXP/2) was given by the accused in his presence and in ‘ rsuance of that the accused got the axe recovered from Iodhara Badi (kitch n garden) under EXP/3. The memo (EXP/2) was reduced into writing whic bears his sigrature from ‘A’ to ‘A’ and the seizure memo ofEX.P/3 also he s his sigiature nom ‘A’ to ‘A’. He has further stated that the bloodstaine and plain soil from the place of occurrence was seized under EXP/4, e shirt of the accused was seized under EXP/5 in his presence. Both th seizure memos (EXP/4 & EXP/5) bear his sigrature from ‘A’ to ‘A’. In the cross-examination he has stated that the accused was holding axe in the police station but in the same breath he again stated that the accused disclose to the police that the axe is lying in P.T.O. xl74~ d jar“ *““ XI—HC~78 WW,®H%W,W Wm @:Z&z/§i(w. H1 200 WW(W) mmm mmm marmm *rg\ WWW MW %aa1%man%$ Jodhara Badi and he brought the same 'i om Jodhara Badi. PW-7 Albert Tirki that While in the police custody the , the investigating officer has stated accused gave memo (EXP/2) and in pursuance of that he got recovered the axe which was taken into possession under EXP/3. The bloodstaincd soil and plain soil was taken into possession under EX.P#4, bloodstained Dhoti of the deceased was taken into possession under EXP/15, and bloodstained shirt of In the cross examination of this Witness. the defmce has not been able to elicit any circumstance which shows that the rec pvery of axe was not at the instance of the accused, therefore, finding of the tiial Court that the axe in question was recovered at the instance of the accuse d does not su§er from any illegality or infirmitv. the accused was taken into possession under EX.PK5. 15. As far as the fourth circumstance that bloodstains were found on the axe and shirt of the accused is concerned, it is true that there is no Serologist 3n the above articles was human blood report to suggest that the blood found deceased but it is not a case where the and that too of the blood group of the conviction of the accused rests onlv on this circumstance. This is a fact that as per the F.S.L. report (EXP/l8) bloodstains were present on the axe and P.T.O. / XI—HC—78 . C¢Ia«./.€. mumm v... ‘... Ezoo/ mm (W) amww§wa§m *(AA mm§ww $WW shirt of th6 accuscd. Even PW—Z DI shirt were taken into possession: has axe and the shirt of the accused. Mo of the accused as to how his shirt w this circumstance also stands es :ablished by the other corroborating circumstances pressed into service by the prosecution. e are of the considered opinion that the 16. For the foregoing reasons, w prosecution has been able to establish the complete chain of circumstantial evidence through which the only irre accused was author of the crime in involvement of any third person in tl the trial Court regarding the invol‘ question does not suh‘er from any i11< igality or infirmity. njan in Whose presence the axe and the stated that there were bloodstains on the rem/er, there is no explanation on behalf as found stained with blood. Therefore, 17-. In the result, the appeal be} dismissed and is accordingly dismiss Sd/— .‘ L.C. BHADOO Judge sistible conclusion can be drawn that the question and there is no possibility of 1e crime in question. Thus the finding of zement of the accused in the crime in ng devoid of substance is liable to be ed. Sdl- Dhirendra Mishra Judge P.T.O.