d9 HIGH COURT OF CHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA.A HON'BLE SHRI R.N. CHANDRAKAR. JJ Appellant Criitiinal Appeal No. 486 of 2002 Khade Ram @ Rajkumar S/o Baage, aged about 25 years, Occupation Agriculturist, R/o Village Raikera, PS Farsa Bahar, District Jashpur (CG) Versus Respondent Stateof Chhattisgarh, Through DM Jashpur Present: Mr. KK Singh, learned coynsel forthe appellant. Mr. Sandeep Yaday, learned €)yGA for the State. ORALJUDGJVLENT (belivered on 18 September, 2009) Per Dhirendra Mishra, J 01. The appellant has preferred this criminal appeal under Section 374(2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 9.3.2002 passed by the II Additional Sessions Judge (FTC) Jashpurnagar in ST No.11/02 whereby learned Additional Sessions Judge has convicted the appellant under Section 302/34 of the IPC and sentenced to undergo life imprisonment and pay a fine of Rs.5,000/-, in default of payment of fine to further undergo Rl for five months. 02. Case of the prosecution, in brief, is that on the basis of inforination given by complainant Sudhnibai on 28.1.2001 at about 15.40 hours, Dehati Nalishi vide Ex.P/14 was registered against the appellant Khade Ram and one other co-accused. The complainant informed the police that while she was sleeping with her husband in the verandah, the appellant and another accused came there and started assaulting the deceased with hand and fists. They tied the deceased with the help of her sari and also assaulted himwith fists and kicks, and thereby caused her death. Merg intimation (Ex.P/15) was also recorded on the basis of information given by the complainant. 03. During investigation, inquest (Ex.P/3) over the person of the deceased Vijay Ram was prepared in the presence of witnesses. • The dead body was sent for autopsy to Community Health Center, Farsabahar vide Ex.P/16 where Dr. C.R. Bhagat (PW 6) conducted - postmortem and gave his report of Ex.P/10. Bloodstained & plain 3St- K.jf'~S soil, broken pieces of bangle and o[d lungi stained with bloodlike substance, were taken into possession from the place of incident vide Ex.P/2. Sari worn by the complainant wrapped around ttie body of the deceased stained with blood was taken into possession vide Ex.P/5. Bloodstained articles seized during investigation were •sent for chemical examination to Forensic Science Laboratory, Raipur vide Ex.P/8. Spot map of Ex.P/17 was prepared by the Station House Officer. Site plan was got prepared by Halka Patwari vide Ex.P/12. Report ofthe FSL is Ex.P/20. 04. After completing investig'ation, charge sheet was fited against the appellant, showing co-accused Chandiram @ Banmalj absconding, in the Court of Chief Judjcial Magistrate, Jashpurnagar, who, in turn, committed the case to the Court of Sessions Judge, Raigarh and the same was received on transfer for trial by the learned Additional Sessions Judge. 05. Learned trial Court framed charge under Section 302/34 of the IPC against the appellant, who abjured his guilt. The prosecution in order to establish charge against the appellant examined nine witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case, and pleaded innocence and false implication. 06. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as described in para-1 of thisjudgment. 07. Homicidal death of Vijay Ram is not in dispute. Even otherwise, from the evidence of PW-7 Sudhnibai, complainant & wife of the deceased, who has been examined as an eyewitness, as also from the evidence of Dr. CR Bhagat (PW-6), who conducted postmortem over the person of the deceased and proved his report of Ex.P/10, in which he has found the following injuries, and opined the cause of death as asphyxia due to strangulation, the homicidal death ofVijay Ram is established. Injuries sustained bv the deceased .(i). Ligature mark around the neck of size 3".& 3%", • (ii) Abrasionon theleft forearm outer side of size 4" x 2" (iii) Abrasion on the right shoulderjoint of size 2" x 1 %", (iv) Abrasion on right kneejointofsize 2"x 1 %", (v) Rupture of thyroid and cricoid cartilage of 8,9,10,11 & 12th ribs teft side and of 10, 11, 12 ribs right side, (vi) Rupture of stomach. 08. Shri KK Singh, tearned counsel for the appellant submits that there is evidence available on record that the appellant resided in Orissa since last 2 year. There is no evidence that he came to the village as there is no evidence that he was seen by any of the villagers at the time of incident. The evidence of PW 7 Sudhnibai is untrustworthy and unreliable as it is in complete variance from her report of Ex.P/14. There;is discrepancy in the description given by her regarding the place of incident. She claims to have communicated the incident to Prabhuram (PW 1) and other villagers, however, Prabhuram has categorically stated that she did not mention the name ofaccused persons. 09. Relying upon the judgment of the Hon'ble Supreme Court in the matter of Jagdish Prasad and others Vs. State ofMP, reported in AIR 1994 SC 1251 it is argued that where conviction is based on the solitary testimony of inimical eyewitness, recording conviction on such testimony would be unsafe. 10. On the other hand, learned counsel for the State has supported the impugned judgment ofthe trial Court. 11. We have heard learned counset for the parties and perused the materialavailable on record, induding the impugned judgment 12. Learned triat Court relying upon the evidence of Sudhnibai (PW 7) has convicted the appellant. Sudhnibai in her deposition before the Court has stated that she identifies the appellant; Vijay was her husband; the appellant has killed her husband. In the night of incident, she was sleeping with her husband when the appellant and others came to her house and pressed his neck. She was also beaten. She fled from there. The neck of her husband Vijay was pressed and his teg was broken. Accused and his associates had caught him that she could not see, but these persons assaulted her husband with fist and kicks. Out of fear she hid herself in the forest and remained in the forest throughout the night. Jn the morning, she narrated the incident tothe villagers and thereafter, she lodged the report. She has further stated that the appejlant-had committed theft in their house in the past and .b.gcause of this, there was some oral altercation between her ./^^ ^ s '•vSs^'ws:::SS'& .1 "VSiK^-J [^'- K^^VJ^ "•••••^^^ 13. 14. husband-deceased and the appellant and they were in inimical terms. In the cross-examination, she has admitted that the deceased had two sons Prem Sagar and Uttar Sagar from his former wife, however, she was residing with Vijay separately. She has also admitted that occasionally she used to trade in liquor. The appellant belongs to her village, he had committed theft of timber and the incident of theft took place two years before the death of Vijay. She has also stated that there is only one room in the house where she resided and it has no verandah. There is no gate in the place where they were sleeping. The incident is of 9 pm and because of darkness sfae could not see all the persons; she could not witness the entire ihcident as she fled towards the forest out of fear. However, she stated that when the neck of her husband was tied, only then she fled. His neck was tied by her sari. She recognized appellant Khade Ram. She denied the suggestion of the defence that she had called appellant Khade Ram and others for murdering her husband as her marriage was engaged with some other person. She has also denied the suggestion that she is also involved in getting her husband murdered and therefore, she did not intimate Prem Sagar and Uttar Sagar about the death of their father. On close scrutiny of the evidence of this witness, which we have reproduced in entirety, we find that this witness has stuck to her claim that she saw that the appellant and others approached their house, assaulted the deceased with hand, fists and kicks and thereafter, tied his neck with her sari and thereby, caused his death. The defence has not been able to shatter the evidence of this witness. On the contrary, presence of the appellant on the place of incident has not been challenged. Version of this witness is also corroborated from DehatiNalishi of Ex.P/14, which was lodged by the complainant herself, in which the appellant has been named as perpetrator of the offence. So far as argument of learned counsel for the appellant that there is complete variation in her version before the Court and the version, which she has given in her Dehati Nalishi, is concerned, we find no cross-examination by the defence with respect to variation in her deposition before the Court vis-a-vis version given by her in the Dehati Nalishi. However, so far.as the argument that Prabhuram (PW 1) hasstated that the complainant did not name the offenders, is concerned, since the evidence of eyewitness ^- ,.1!.- regarding presence of the appellant on the place of incident, inspires confidence, we consider the evidence of Prabhuram in this regard inconsequential, wherein he has stated that the complainant did pot name the offender when she narrated the incidentto him. 15. The judgment in the'matter of Jagdish Prasad (supra), relied upon by learned counsel for the appellant, is of no help to the appellant as facts of the cited case are distinguishable from the facts of the present case.- 16. On the basis of afores^id discussion, we are of the opinion that there is no illegality or infirmity in the impugned judgment of the trial Court convicting and sentencing the appellant for committing murder of deceased Vijay Ram. There is no substance in this appeal, the same deserves to be dismissed and is, accordingly, dismissed. —-— Sd/- DHffiENDRA MISHRA Judge Sd/- R.N. Chandrakar Judge 1'5.K;-!.;^''!B