HIGH COURT OF CHHATTISGARH AT BILAsPUR Criminal Appeal No. 1 1 I2005 $‘;‘ ‘APPEAL UIS 374 i2) OF THE CODE OF CRIMINAL , PROCEDURE, 1973 »u A§pea§ance1 Shn' Prafull Bharat, counssl for the appellant. Shri Arun Sao, Government Advocate for the State. Division Bench:- Hon’ble shri T.P. Sharma & Hon’ble Shri R.L.Jhanwar,JJ ORAL JUDGMENT ‘ (11.11.2010) Per T.P.sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 7. 12.2004, paseed by the Additional Sessions Judge, Baikunthpur (Korea) (CG) in S.’I‘,No.300/2004, whereby and whereunder the leamed Additional Sessions Judge, after holding the appellant guilty for commission of culpable homicide amounting to murder of Indirabai, convicted the 1 appellant under Section 302 of the [PC and sentenced for life imprisonment and tine of Rs.3000/ -, in default of payment of mic to undergo additional R.l. for 3 months. 2. The conviction is impugned on the ground that Without any iota of evidence, the learned Additional Sessions Judge has APPELLANT Shishupal @ Sushji Sai s/o (In custody). Mangal Sai, Aged about 2O years, R/o village Katora, PS Pama, District Korea (CG) VERSUS REsPONDENT ‘, State of Chhattisgarh Through the District Magistrate Korea, Baiinmthpur (CG) convicted and sentenced the appellant as aforementioned and \ thereby committed illegality. 3. As per case of prosecution, appellant Shishupal @ Sushjl was having illicit mlations with Indirabai (since deceased). On fateful day of 14.5.2004, at about 11.30 am, Indirabai was present in the Mango grove along with Savita (PW-1) and Mahanguram (PW—5), whele tlr1e appellant came with a sword and assaulted Indilabai with the sword and themby caused as many @3328 injuries, resulu'ng into instantaneous death of Indixabai. Within‘ 1 hour of the incident, Savita (PW— 1) owner of the Mango grove went to Police Station Koria, 3 kms away mm the place of incident and‘lodged FIR vide Ex P/2 Merg was mcorded'vide Ex P] 1 The Investigating omcer left for the scene of occurrence and after summomng Witnesses Vide Ex P/7 inquest over the I dead body of the deceased was prepared v1de Ex. P/8. The dead body was sent for Autopsy to Government Hospital, Patna, where Dr. A.K. Shanna (PW- 10) conducted autopsy vide Ex. P/ 13 and found following 28 incised wounds including fatal injury over the neck and other parts of the body of the deceased: Incised wound over right side of neck at middle obliquely size 3 1/2 x 1" x1 1/2”. Sub uterus tissue- muscles, blood vessels are found cut. lncised wound on back of neck oblique, size of wound 2 V2” X 1 V2” X 1” Incised wound on left parietal region'of scalp, oblique. Size is 2 V2” x l x bone deep iv. Incised wound on right parietal region of scalp. Size 3 x 1 x bone deep lncised wound on left palm, at middle, vertical size 2” x 1/ 2" x 1” w; Incised wound on left palm of 3 x 1 X V2” V11. Incised wound on left palm at middle of 2 V2 x V2 x 1 Incised wound on left pahn below 31d and 4th on matacarpal region and its size was 2” x V2” x 1" Incised wound on left palm at 2nd and 3‘d at metacarpal region below 2 V2” x Vz’ x 1” Incised wound on 3rd,4*—h and 5th dnger at midd1e size 1 1/2” x 1/2” x v2” Incised wound over‘dorsal surface of left with oblique, size 2 V2” X 1" x 1" Incised wound on left forearm at lower part oblique, at dorsal surface, size is 3 x 1 x 1" InciSed wound” on left forearm at dorsal surface and middle, size 3 x 1 x 1" XIV. Incised wound on dorsal surface of left arm horizontal, at upper part size 3 x 1 x 1" Incised wound on right forearm at middle oblique size is 3 x 1 x 1" Incised wound at right foxearm, at lower part oblique size2V2x1x1" Oblique size wound in right wrist size 2 V2 x 1 x 1" Incised wound on right palm oblique at outer part size 2 V2X1X1” Oblique incised wound on right palm size 2 x ‘7'2 x V2” incised wound on right palm of 2 V2 x ‘/2 x V2” Ineised wound on right hypocorder region on abdomen, veru'cal, size 1 5’2 x ‘/2 x V2” lncised wound on hypogasn‘ic region of abdomen at lower part size 1 x V2 x V2” Incised wound on left side of chest, horizontal size 2 x V2 X‘ 1/2” . Incised wound on left side of umblicus size 1 V2 x V2 x ya m ' . , XXV. Incised wound on left leg at middls back size 2 x 1/2 x '1/2” xxvi. Incised wound on left leg at front of lower part size 2 x Vax 1/2” xxvn Incised wound on right thigh at middle side size 1 V2 x V2 X V2” xxvmincised wound on light thigh at hont and upper part sizelxyzxyz" ' Cause of death was opined to be syncope, which resulted a f.mto shock due to excessive . haemorrhage h‘om the injuries . . . and multiple injuries and death was homicidal in natum. During the geomse o1: investigation, spot map was prepared vide Ex! P/3. Patwan' prepaxed spot map vidc Ex. P/4. Appellant Was taken into custody; he made disclosure statement of sword and kurta vide Ex. P/S. Same was recovered at the instance of the appellant vide Ex. P/6. Plain soil and blood stained sail was mcovered from the spot vide Ex. P/9. Sealed clothes of the deceased weie seized vide EX. P/ 12. Accused also received injury dun’ng the course of incident when he fell down; he was examined by Dr. A.K. Shanna (PW- 10) vide Ex. P/ 14 and found 3 injuries over the person of the appellant. Statements of the Witnesses were recorded under Section 161 of the Code of Criminal Procedure, 1973 (in short the Code). 4. After completion of investigation, charge sheet was filed before the Chief Judicial Magistrate, Baikunthpur, who in tuna, committed the case to the Court of Sessions, Ambikgapur ftnm where, the learned Additional Sessions Judge received the case on transfer for trial. 5. in order to prove the guilt of the accused/appellant, prosecution examined as many as 12 Wimesses. Accused] appellant was examined under Section 313 of the Code, where he denied the circumstances appealing against him, innocence and faRse implieation incrime in question was claimed. 6. ~After £0rding opportunity of hearing to the parties, learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. ;u 7. We have heani Shri Prafull Bharat, learned counsel for the appellant and Shri Arun Sao, learned Government Advocate for the State, judgment impugned and record of the Court below ‘k perused. 8. x Learned counsel for the appellant vehemently argued—Nthat conviction of the appellant is based on the sole evidence of savita (PW- 1), which is contradictory and does not inspire confidence as also the same is not trustworthy and is not safe to rely upon. There is no further corroboration ~of the evidence. She is not a reliable witness, and therefore, on the basis of her evidence, conviction of the appellant for commission of such heinous odence is not sustainable under the law and the appellant is entitled for acquittal. 9. On the other hand, leained counsel for the State opposed the «arguments and submitted that although the evidence of . Savita (PW- 1) is contradictory, but her entire evidence is well corroborated by the promptly lodged FIR Ex. P/2 and Merg intimation Ex. P/ l, which inspires coniidence, trustworthy and is safe to rely on and the same is suEcient for conviction of the . appellant under Section 302 of the IPC. 10. In order to appreciate the arguments advanced onbehalf of the parties, we have examined the evidence adduced on behalf of the parties. 1 1. In the present case, homicidal death as a msult of fatal and simple injuries found over the body of the deceased — Indixabai has not been substantially disputed on behalf of the appellant, but on the other hand, has been established by the evidence of Dr. A.K.‘ Shanna (PW-10) and autopsy Iepoxt Ex.P/ 13 which revealed that 28 injuries were found over the body of the deceased and death was homicidal in natuxe. ‘ r 1’2. As regalds complicity of the accused/appellant in in qaestion, conviction is substantially based on the dee of Savita‘(PW— ), owner of the Mango grove. As per her evidence in para 2, she was present in the Mano grove belonging to her. Mahangur (PW—5) was plucki the mangoes hom the Mango tree; after some t, Indimba (since deceased) also c there for collecting the oes. After one hour, appellant reached the Mango grove holding a word. He started assaultin Indiiabai by the swor. Firstly, he assaulted upon the neck of Indirabai. On this, Savita immediately ran away hom the spot and wen o‘ h n s ain t a o e d ;a t .t er house ad after ome time, she ag come back o the Mngo grove and thereafter she went t Polic Station an lodged FIR and Mex inttion. In para er cross examination, she admitted that wl she ollecting the mangoes, she and M d t P came there and too em to Police Statio. She also deposed that on suspicon, hey were detained in Police Station and s was compelled b the Police to the appellant as assailant. But in same para i.e. para 3, th witness as denied the suggestion gven by the defence at she has no n the iident i.e. appellant has not assated Inirabai. She has voluntaril ep e o l ahanguram saw the ead body of he deceased. olice k th n «- i t he ul d y £3 dosed that sh has seen the incident. In para 4, she has als ' denied the suggestion that befote arrival of Indixabai to the Mango grove she went back to her house. If this suggestion is ~ c ' e evinc 1 g t an‘i ng ime i ame mang s g d g ima 3 of h hie was c y name j_ is h i th t see nc @ considered coupled with‘the evidence ofpaxa 2 and 3 it revealed that the appellant has assaulted Indn‘abal by the sword Sawta (PW 1) has seen the mc1dent m first part and thereafter, she ran away to her house. After some hme, she came back to the Mango grove, at that time, appellant was not present, but dead body of Indirabai was lying in injmed condition. 13. Evidence of Savita (PW- 1) is corroborated by the promptly lodged FIR Ex. P/2 and Merg intimation Ex. P] 1. Evidence of “Es wimess inspires confidence, safe and trustworthy to rely on. After appreciating the evidence available on record, learned Agditional Sessions Judge has convicted and sentenced the appeliant asQ aforesaid mentioned. The conviction and sentence of the appellant is based on credible, clinching and legal evidence and sustainable under the law. m 14. For the foregoing reasons, we do not find any substance in the appeal. Consequently, the appeal is liable to dismissed and it is hereby dismissed. n Sd/- Sd/- i i i! R.L. Jhanwar T. P. Shanna 1 L i Judge g Judge. W‘:"7'V