XI-HC—78 •^T^i^I'^IW ^^1 3TR^I ^HW -S:c3f ^||<t|t<7i>A|, ^xny4i<o, fsl^l'M^ U|t<dl sb*<l<*» •^ 200 3ni?r-q^? (^f^s^) i^TW^rfi'^S^? COURT OF CHhAmS6ARH AT &IVISION HON'BLE MR. U HQN'BLE MR. DH ./' CRIMINAL ^PEAL N0.412/2001 T Vs RESPONDENT Present: Dr. Shailesh Ahuja, Advocate fc Mr. U.N.S. Deo, Addi. Public Pro 4sRid^i^ 'W^if ^t.fe^ ifa^K ^•^tfe^^i^l BHA&OO a RENbRA MISHRA. JJ Dilip^am/ son of Siborwi Dhobi, Caste Dhol^i, O.Qed 22 years, Occupation" ^gri^ulturist, resident of Village |iyadih, P.5. Farsabahar, Tehgi! Kunk|jrj/District Jaghpurnagar (C.6,) Stat^ of Chhattisgarh through P.5. Farsobahar, Tehsil Kunkuri. District Jash^urnagar. r the appellant. ecutor for the re^pondent-State. (11th P@r L.C. Bhodoo. J: O R A L ITUD6MENT |Jyn@,200^ This appea! is directed o|ainst the Judgment of conviction and order of: sentenc^ dated 12 February, 2001 pa^sed by barn^d Additiona! Segsions Judge, jQg|ipurnagar in S.T.No.81/2000 whereby iearned Additiona! Sc^sions Jud^e after hotding the Gccuged/appelJQnt guiity for commission of offe|ice under Section 302 of the IPC, XI-HC—78 3:^T ^TPTT^T, ^•y'KS, ?s|01<-t^< tTpTc^T sbNlcb •^I^I^T1^?N? ^^i ^Ti^i '^^w \ -^ 200 a^?r x^^ (^I^<^) •??graT^f5iT3iI^I sentenced him to undergo R.I. defauSt of paynient of fine to f' Case of the prosecution/ gaye birth to a chiid Kartikr4m out of her ilticit reiations i^ith the accused. When 6ono Bai @ J^nmati Bd wa^ in the advance stage of pregnancy a viliage Panchoyat father of the accused panchayat, t^o acres of land w 1.2.2000 at about 7.30 p.m. w months, in the iap of &ans deceased, the accu^ed came snatched the boy from the lap who immediately noticed that child and his neck ^a^ rotcrtind '^Plfepft5! 'STO^S ^fe^ ^^1< '^'^JRR^ii^l :or !ife and to pay a fine of Rs.SOOA, in rther undergo R.I. for three months. in brief/isthat Gono Bai @ Janmati Bai was convened by her father In which Ipresent and as per decision of the ^ given to^ &ono Boi @ Janmati Bai. On |hen the boy Kartikram, sged abou-t 3 |bai Sarthi (PW-4)/ gister of mother of jovered his body with a Chaddar. He ^f Gansibai (PW-4) and aft-er some time he handed over the chiid to Sa^itri Bai (PW-2), grand mother of child, here was no movement in the baasy of therefore, she immediateiy catled her gon Banchharam (PW4)/i^ho sa^ the chi!d Qnd found that the child ww aSready dead. A meeting of villa^e panchayat was cailed and on the next day morning Banchharam lodgpd the report ^xP-l) in the Police 1 . . Station FarsabGhar. Aft'er r^gistering the case, the Inve^tigating Officer left' for the of o^currence and aft'er giving notice to the Panchas preparea inquest over |the body of deceased KQrtikram/chiid XI-HC—78 3-^T •^ll^t^'4, ^Tft'y'KS, Rf0W^< NWdl sbNlcb •^ 200 • ^I^T ^T'fe^' ^^l? ^^l ^RI^ 3?ii?r 'q^? (l^l^<^) 'i^IW^'fei ^it^T of Janmati Bai. H€ a!so prep^i po^tmortem examination to Pr| Dr. i&opal Singh Paikra (PW-4; report ExP-2 and opined tha| biockage of air passage by thr^ Aft'er compietion of usu^ the Court of Chief Judicial committed the case to learn4 ieQrned Additional Sessions Jj trial. The prosecution in ord< accused/appeitant exQmined accused/appetlant wae record^ he denied going to the house oj not committed his murder. He ^PlfeNh '^R^it ^,ft^ ^fa^K ^>3ifiR<3^?^I red the site ptan and the body for mary Hedth Centre, Farsabahar, where conducted postmorf'em/ prepared the the cause of death is asphyxia due to ittling and nature of death is homicidal. investigation, charge sheet was fi!ed in ^Aagistrate, jGshpurnagar/ who in turn d Sessions Judge, Raigarh fram where jdge received the on transfer for |r to estabijsh the charge Qgainst the seven witnesse^. Statement of |d under Section 313 of Cr.P.C. in ^hich jGnmati Bai. Hov^ever, he admitted that deceased KQrtikram was his soh/ how he died he not kno^, he had |as been faiseiy implicated in the crime. Learned Additional SessJons Judge after heoring the arguments ^ of learned counsel for the res^ective parties, convicted and sentenced the accused/appeltant, as afor^Tse^tioned. We have heard Dr. Shal and Mr. U.N.S. Deo., Addl. Pub!i lesh Ahuja/ Advacate for the Gppelbnt fc Prosecutor far the regpondent/State. XI-HC—78 •^u3( ^IHI^, ^WI^, Rt01<-1^< HINdl st»NI<*» •^ 290 •3^i^l'^W ^?.^ ^ii^r ^n^)' 3i?^T 1?^? (^I^<^) i^Trw^cf^^r As far a.s the questio| concerned, the has not y< appellant. AAoreover/ Dr. 6opa 3.2.2000 he ^as working as ^ of homicidal death of Kartikram is ,een dispyted by leorned counsel for the Singh Paikra (PW-6) has stateci that on ss-istant Surgeon in the Primary Heaith Centre, Farsabahar, on that d^y cit Qbout 8.30 am< body of Kartikram, son of Janmati Bai/ aged ab^ Con^tabie kaviial of Police examinQtion. On examination, ^ were closed and reddishnes^ d of neck. On dissection, he noti the swelling, brain & Sungs wer^ death was asphyxia and HQture Ex.P-2. In the cross-examinatl ^itness. Apart from that, &an ^I^fe^i 'HTOft'^.fe^ I^i^R ^T^fOT3?i^T lut 3 morsthg/ v^as brought to him by Station FGrsabohar for postrnortem e found that eyee & mouth of Kartikram g^elling present on both the sides |ced that there i^'ere conge^tion beneath |a!so cong^^^d^ He opined that causc of of death was honiicidal and his report is lon of this i^jtness the defence has not able to e!icitany circum^wce to discredit the evidence ofthis ibai Saarthi (PW-4) has stated that on the fateful day !<Grtikram,age<j about 3 months, was in her lap, at that time thc accused came and osked her to handover ths child to him but she refused to handover, on ^(|ich accused snatched the chiid, at that time the accused wos coverin ^ his body ^ith a Chaddar. He ^ent tovvards the i¥a!l and gat on th^ ^a!l, After same time he hQnded over XI-HC—78 •S^3( ^|41^, ^-H'l^, [st^l-t-iy *(l^dl ^»NI<h '^i^l^T'f^W ^^T ^^ ^N^ f- ^ •^200 3?I^?T ^SE (^iysq^) 'i^TW^it^ ^Tit^I the child to Savitri Bai (PW-| aIreGdydead. In view of the above med- thcrt that death of Kartikram w^s As far as involvement ofl quegtion is concerned, jGnmati accused were having affdrs anc| gave birth to Kartikram. Thisj accused rather he ha^ admitted Cr.P.C, that Kartikram h involvement in commission a '^pfeq|^ 'gOT^if "^^fe^ -<fa^s< ^^to^i^i !), then they saw that the child was ica! & ocular evidence, it is estabiished .s honiicida! in nature. the accused/Gppetiant in the crime in Bai (PW-5) has stated that she and on Gccount of their itlicit retation^ she fact hag not been disputed by the in his statement under Section 313 of ^ son, but he hdS denied about his murder of KartikrQm. Even PW-1 Banchharam has that J^nmati Bai i^ his daughter, accused & JaniTiati w@re having Qffairs, J^nmati disclosed thig fact to him that she is pregnant by eight monljhs from Qccused Dliip, therefore/ he convcned a meeting in the viiiage in i^hich accused did not appecr but his father appeared and admittN that Janmati Bai is pregnant due to iiiiclt reiations between Janmati & Dilip. He agreed to give t^o ocre^ of l' iand to Janmoti Bai, Therefore^it is an admitted fact that ©onoBd @ Janmati Bd birth to Kartil^Gm out of i!!icit rebtlons between her and accused Di!ip, XI-HC—78 3^ET r^HI^, ^Tfl'yjl<S, R|01'y^< ' •3'ii^i^T'^i^> ^^^w^^ ^ \\ Nl^ldl shHI* ^ 200 31T^T Tp^ (4c4l^<^) 'i^iTW^^T ^i^i PW-4 ©ansibaiSaarthi, ^ that on the fatefui dsy &. timej at that time accused canie and! wt?ich she refuged, onwhich t| At that fime the accused was! took the chitd towards a ^al! arid sat on the walt. At that time hi^ gister food/therefore/sl handed aver the child to Savii WG^ oJready dead, PW-2 Savitri Bd ^os 5ansibai (PW-4) and stated th( the evening chitd Karl-ikram handed over the chi!d to her. chiid from &ansibQi. She has ft af?3er handing over the child to ^FgfeRN 'STO^Jf '^,'fe^ <fa^l< ^^tRR^?^ i^ter of mother of deceased, hag stoted in the evening Kartikram in her iap, her to handover the chlid to him, E@ accused snatched the child from her, covering his body ^ith a Chaddar. He s^ went to give water to her. Accused ri Bai on i^hich they €QW that the chiid lcorroborated the above evidence.'of I" on the fatcfu! day at about 7U°8 p.m. in ^as i^'ith bijipram and thcreafter he IShe ako caw that the accused took the ijrther stated that the accused ran wjGy her. When she took the child in her !ap ^he €QW that there was no mo^mcnt in the body of child arsd his neck rotating. She imrnediatejy ^aiied her son BanchharQm, who sa^ the chi!d and noticed that th@ fchitc! WQ€ ajready dead, therefore, a panchayat iA/os convened and th^ reafter the matter ivas reported in the poiice station. r XI-HC—78 3^^T ?qT?n^T, ^ix{1^<l<o, {s)0l^^< ^ii^l^T'fe'^' W^ ^iT^i^W^> ^Wdl sb4(<*» -^ 200 W^ V(^ (^fygq^) l^iw^n^i^i 1 ^ M@ (^W The evidence of abo\ corroborGtcd by Banchharam Learned counsel for th4 crpgs-examination/ Savitri Bai day the accused did not come t of the aecused at the resi^ commission of crlnie is not established t^o witnesgcs has further been ^l), i¥hoiodged the report, accuseas/appe!!ant argued that in the (PW-2) has stated that on the fateful her house and therefore, the presence ence of jQnmati Bd at the time of house, but about her evidence the boy from Gansibai (PW-4) to Savitri Bai. Moreover, thd clear and cogent to the effect <^Rl<rl4l'i 'WI^if ^'fe^ ifa^K '^'^fOT^i^r It is true that in the ias+ tine of cross-examinatjon PW-2 Savitri Boi has stated that on the fat^ful day accused did not come to their in the exQiTiination-in-chief she has not been cross-examlned ta the effect that the accused had not snatched ^r that he did not handed over the boy evidence of PW-4 &ansibd Saarthi is weni towards the wali where fhat at the time of incident the boy wa^ in her iap, the accused came ^nd snatched the boy from her lap and he ^at on the watl and his body' ^as covereo mth a Chaddar. The €i?idenc€of these two witnesses has been corroborated by PW-1 Banchhaqam. Therefore, in !ight of J-he evidence of obove witnesses and totaiity of cvidence, if the arg|jment Qdvanced by iearned counse! for 3:5;5r'-<11^1<7>^, ^Tfl'M^KS, fs|^l<rl^< W^vi[ <b*<14» ^L 200 3TI^?T TRRF (4C<^<^) Sffi^T^rR;^ lsh^i<=h ^,^ <..;; From the scrutiny of evid^nce lavitri Bd (PVV-2) & Banchharam ftitefui day ond time &Gnsibai WQ^ f ^RHW^^f^n^l ie appeilant is gcrutihized, then :cused ^as not involved inthe crirri w iB that time the Qccuged/appellant 'om the !ap of ©ansibai,took him 1^< hbnded over the chi!d to Savitri B4S hat there i^as no movement in the ^tating and therefore, called her ^e and saw that the boy was ibove evidence it is estabtished ^ponsibte for committing myrderj ho^s-examination of the above wil ^!e to bring anything on record whi| ^oy WQ€snotched by th@ accused fr-< ^mebody has the ^tabiished by the rfiedica} & ocub^ Ibrtikram had died an account of as| <!ni4it<n<ftTi TTR^ff ^F Fs<<1 iFai^K ^^tRFT^T^T Ithe sarrse hos no merit that the in questian. of ©ansibai Saarthi (PW-43, f""l)yit 1s egtabtished that on the h^lding the boy in her !ap, |camie there and ^natched the boy lowards the ^att snd thereafter he 14s (PW-2)/ ^/ho imniediatejy noticed ?oay of KartikrQm Qnd his~ neck ^ora Banchharani, ^ho also came an ^iready dead. Therefore, from the hat the accused was the person of Kartikram. Moreover, in the !|ne^es, th'e defence has not i^h suggest that when the |m &ansibai, he ^vas dready or |ieck of the body, as has been i^ evidence thot the deceaged boy hyxi'Q due to pressing of neck. GRPRJ—^^^. XI-HC—78 3^ET ^1^)10^, ^Tny<!(S, (s)01-M^< NiNdl WRTrsR W^ 200 3^T ^TSF (4?<H^<^) 'STT^T ^T f^^ich 'cT^IT 3^I?T^RI^ -..^ RoshanA ^" ^^TTW^f^TW^T For the foregoing reagons/ there is no itfegaiitY or infirmity i appeal of the appeitant being de' di^migsed and the is hcreby Sd/- L.C, Bhadoo Judge <^i^(<n4i"i TTR^!f ^'fe^ iFai^K ^'srRTH 3ff^r ^c are ofthe considered opinion that i the judgment of the triai court, the wd of ony substQnce is !iab!e to be dismissed. ——L Sd/- Dhirendra Mishra Judge