HISH COURT OF CHHATTIS6ARH AT BILASPUR &IVISION BENCH: HON. MR. L.C. BHAtiOO & HON. MR. DHIREN&RA MISHRA. JJ CRIMINAL PEAL N0.22 OF 2002 APPELLANT (In Jail) Ludu Ram [• Vs reSPONDENT State of Chhattisgarh. JUbSMENT POR CQNSIOERATtPN Judge HON'BLE MR. L.C. BHAbOO. J 8d/- L.C.BHADOO Judge POST FOR JU&6MENT ON 3"IMay, 2007 Sd/- y.^ajor 1 P^e 1 of7 HI6H COURT OF CHHAmSGARH AT BILASPUR DIVISION BENCH: HON. MR. L.C. BHADOO & HON. AAR. DHIRENDRA MISHRA. JJ CRIMINAL APPEAL N0.22 OF 2002 APPELLANT (In Jail) Vs RESPON&ENT Ludu Ram, Age 26 Yrs, S/o Sahdeo Muria, Caste Muria, R/o Village Lamker, P.S. Bhanpur. &istrict Bastar C.6. State of Chhatt-isgorh, through S.I., Jagdalpur, Chhatl-isgarh Present; Mr. ftam Krishna Sharma, Advocate for appellont. Mr. Ashish Shukla, Additionnl Public Prosecutor for the State/respondent. JU t>6M E NT (Delivered on J2..5.2007) Per Dhirendra Mishra. J: 1. The appelkmt has preferred this oppeai under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinaftet- shall be called lthe Cr.P.C.') against the judgment dated 28.11.2001 passed by learned4+1' Additional 5essions Jud9e, Jagdalpur (Bastar) in S.T. No.343/2000 whereby tearned lAdditional Sessions Judge after holdin9 the appellant guitty of causing death of his son Sukhram, hos convicted him under Section 302 of the Indian Penal Code and sentenced to undergo R.I. for life and to pay a fine of Rs.200/-, in defcult of payment of fine to further undergo R.I. for two months. _ 2. The cose of the prosecution, as unfolded from the First Informotion Report of Ex.P-5, is that Shri Jeevan B. Bhalekar, T.1.. Police Station Jagdalpur after merg enquiry lodged the report on 6.6.2000 at ahout 1635 hrs to the effect that on 3.6.2000 in the morning, the mother of deceased Sukhram gave the deceased in the lap of her husbandas w Paee 2 of 7 she was washing clothes. The deceased and her husband both went somew/here, she searched them from morning till evening, however, she came to know in the evening that her son is lying dead in a well and Lutu is missing. The well is half kilometer away from her- home. It appeors that Lutu has thrown the child in the well. Suspect Lutu could not be troced on search. All the places where hewas expected, wer-e searched, however, his whereabouts could not be traced. Luturam with an intention to cause death of the child has thrown her child in the wetl as a result of which Sukhrorn died. 3. Prior to FIR (Ex.P-5), Lalchand Sharma gave merg intimation of Ex.P-3 on 3.6.2000 at about 1645 hrs to the effect that he went to the field behind his house and saw the dead body of a boy aged about 2.^ to 3 years floating in the well situated in his field. Police reached the spot and inquest over the dead body of Sukhram was performed in the presence of the witnesses vide Ex.P-4. Body was sent for autopsy where &r. V.K. Jha (PW-1) conducted the postmortem examination and submitted his report Ex.P-2. He found eight anti mortem abrasions on the midctle of occipital region of skull, right parieto occipital region of skull, frontal surface of teft wrist, thenar eminence on teft hand, on the middle of left hand palm, AAC region dorsum hand (left). On internal examination one haematoma with clotted blood on the central occipital region, clotted blood from pwieto occipital region was oozmg out, subarcachnoid, subdural & subpial haemorrhages, blood clots were present in the brain membrane, lungs congested, white froth was present in the trachea, inner surfacewos congested, both the lungs were swollen, stomach and intestines were full of w/ater, spleen was contested and there is kidney failure. Injuries No.l & 2 were sufficient to cause death, as they were grievous. He opined that the cause of death was asphyxia due to drowning and death occur-red within 24 hours of postmortem examination. Investigating Officer prepared the spot map of Ex.P-6. The appellant was aiso sent for npr^:—; Page 3 of 7 medical examination on 13.6.2000 and MLC report is Ex.P-10. The appellant was arrested on 12.6.2000 vide arrest memo Ex.P-11. 4. After compteting investigation, charge sheet wos filed against the appellant in the Court of Chief Judicial Magistmte Ja9dalpur, who in turn committ'ed the cose to the Court of Sessions Judge, Jagdalpur and the same was received on transfer for trial by learned Additional Sessions Judge, who fromed charge under Section 302 of the IPC against the accused. The appellant abjured his guilt. The prosecution in order to establish the charge against the accused examined 10 witnesses in all. Statement of accused was recorded under Section 313 of the Cr.P.C. 'm which he denied the circumstances appeoring against him in the prosecution case and pleaded innocence & false implication. After hearing tearned counsel for the respective parties, iearned Additional Sessions Judge convicted and sentenced the appellant, as described above. 5. Learned trial court on the basis of the statement of Tilo Bai (PW-5), wife of appellant & mother of deceased, who hns stated that the deceased was not nbte to walk, he could walk with the help of watl, the well was at a distance of half kilometer from her house ond it was not possible for the deceased to reachup to the well and fail in the well and since in the fateful morning she had seen the deceased alive in the company of the appellant and the appellant has not explained as to how the child reached near the well and where he had gone with the child in the morning, has orrived at the conclusion that the death of child was not accidental but it was homicidal. 6. Learned counsel for the appellant submits that on the basis of evidence of last seen, particularly when the appellant is father ofthe deceased and he was seen with the deceased by the mother, it cannot be presumed that the appeliant took the child and threw him in the well with an intention to cause his decrf-h. It is argued that the chiid was abte to walk with the support of wall, even otherwise, he could Page 4 of 7 crawl on knee and therefore, the conclusion of the trial court that the chiid could not reach the well situoted at a distance of 500 meters on his own is incorrect. 7. The other circumstantial evidence relied upon by the triai court are as under:- a. Tilo Bai (PW-5) has stcted that she saw Luturam go'mg outside with the child and thereafter the appellant was abscondin9 till 12.6.2000 ii/hen he tried to flee after seeing the police and fell on the ground on being chased and sustained injuries which were examined by PW-9 and injuries found on the persons of accused were proved vide Ex.P-10. b. Tiio Bai w/ent in the searchof the child to the hotel where Luturam worked and there she u/as told that the accused had not turned up to his work place on that day. 8. On the basis of above evidence of Tilo Bai, the courl- below has held that in the morning the deceased was seen alive in the company of the appellant for the last time and thereafter his dead body was found floating in the well. In Paragraph 16 of the impugned judgment it has been held that the motive hos been established from the statement of Phoolsingh (PW-8), cousin brother-of Tilo Bai, w/ho has stated that he had given this stotement (Ex.P-10) to the police that the deceased wos sick since so many days, he was not respondin9 to the treatment, the appellant was puzzted and thought of kiliing him and on 3.6.2000 at about 5-6 a.m. took tbe child to the well situated behfhd the house of $ill Sardar and had thrown him in the well. Thus the appellant wanted to get rid of sick child as he was puzzled and therefore, the motive for the crime is established. 9. Learned counsel for the appellant subniits that the prosecutidn has i not been able to establish themotive, as the above finding is bdsed on the statement of hostile witness. Statement of PW-8 PhoolsinQh does nbt inspjre evidence as in the cross-examination on behalf lof the Page 5 of 7 accused he has categorically stated that the police did not interrogate him. He aiso claims to have seen the appellant working in the hotet just 8-9 days afl-er the incident. Therefore, in absence of motive only because Tilo Bai has stated that the appellant went carrying deceased in the morning and thereafter dead body of the deceased was found in the well, it cannot be inferred that the appellant had throw/n the chiid in the weil to get rid of him. 10. On the other hand, learned Additional Pub!ic Prosecutor for the State supports the judgment of the trial court. 11. We have heard learned counsel for the parties and perused the record as alsothe impugned judgment' 12. We have detailed the circumstances on the basis of which the appellant has been convicted. PW-3 Laxminath & PW-4 Saradi are landlords in whose house the appeliant resided as a tenant and w/orked in the hotel for his livelihood. PW-3 Laxininath has stated that the appellant came to their house os a tenant just before 15 days. On the date of incident appellant's wife told that her husband has taken her child and has not returned. He searched and in that process went to the shop where he was informed that the appellant has not come to his work. He searched him to various places but neither the accused nor his child could be traced. Ultimately at about 4.00 p.m. the nephew of ©illtook him to the well u/here he identified the child to be the child of his tenant. He narrated this fact to Tilo Bai and by that time the police had taken out the dead body and took it for postmortem. Accused went soinewhere and did not return thereafter and later on, he found the accused in Samosa shop. 13. PW-4 Saradi, is also witness of foct that Tilo bai informed him that her child has gone with Luturam in the evening, they all went to seorch the child but they could not trace and in the second day morning the body was found floating in the u/ell near Samund. The accused was hiding for eight days ui/hen he wos found in a Hotei near Page 6 of 7 Chitrakot Road. In the cross-examination this witness has admitted that Luturam some time came back to his home and some time he did not come. It is true to say thcrt' accused returned home in 4-5 days, as he w/orked in some other place. It is also incorrect to saythat it is just possible that he might not have heard about the missing of child and therefore, he might have not come back. 14. PW-5 Tilo Bai has stated that her child Sukhrom was one year old, he was not able to walk without support, her husband worked in a hotel, he went at about 5.00 a.m. with the child somewhere, in the night she, her child and husband were together in the house, she made enquiry from the hotel where Luturam worked but he had not gone to the hotel on that day, she searched for the chiid till evening and told the same to the nei9hbourers. When she iearnt that a child has been found in the w/ell and taken to the hospital for postmori-em, she went to see the child. The well is half kilometer away from her house. Her husband might have thrown the child in the well ond thereafter obsconded and did not return home. He was arrested by the police. She has admitted the sug9estion that the child was able to crawt through knee. It is incorrect to say that her husband did not return home for 4-5 days from work. 15. From the evidence available on record it is established that the child u/as last seen alive in the company of the appellant in the morning of incident, thereafter the dead body of chitd was found ftoating in the well. It is atso established from the statement of Tilo Bai (PW-5), who is wife of the appellant, that affer he left with the child the dead body of child was found in the evening and the appellant did not return home and she saw him only after he was arrested. There is no explanation by the appellanteither by way of cross-examining the witnesses or in his statement under Section 313 of Cr.P.C. cs to what happened after he left his home with the child. There is also no explanation as to why he did not return home till he was orrested on 12.6.2000. If the evidence avaiiable on record is put to9ether i.e. Page 7 of 7 .^ going of the child with the accused in the morning, child aged about one year wns not able to w/alk without support, tocation of well, which is 500 meters away from the house, conduct of the appellant in not explaining the circumstonces that what happened when he left the house in the morning and reasons for not returning the home till he was arrested by the police and further finding the dead body of the deceased in the well situated at about half kilometer away from the house of appetlant with numerous injuries over the person of deceased are the circumstances which leads to irresistible conclusion that the appellant had thrown the child in the well and thereby caused his death. There is no reason for the wife of the appellant to implicate her own husband in a false charge that too of a murder of his own child. The circumstances relied upon bythe prosecution for convicting and sentencing the appellant is based on the evidence available on record, which cails for no interference bythis Court. 16. In the result, we do not find any illegality or infirinity in the judgment of the trial court and the appeal filed by the appellant being devoid of any substance is tiable to be dismissed and the same is hereby dismissed. Sd/- L.C.BHADOO Judge Judge i.^--_ Roiihan/- c- >' 9-