HIGH COURT OF CHHATTISGARH AT BILASPU DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BLE MR. R.’L. JHANWAR.‘ JJ. CRIMINAL APPEAL NO. 173/2004 CRIMINAL APPEAL UNDER SECTION 374 l2) Cr. P.C. Present:— Mr. V.P. Gupta, Advocate for the appellant. Mr. Sandeep Yadav, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passed on 14/09/20 10) T.P. Sharma, J:— ‘1. The followmg judgment of the Court was p_assed bv Challenge in this appeal is to the judgment of conviction and order of sentence dated 15/1/2004 passed by Sessions Judge, Jashpur District Jashpur in Sessions ’I‘m‘al No. 52/2003 whereby and where under after holding the appellant guilty for the offence f commission of culpable homicide amounting to murder of Indarram convicted the appellant under Section 302 of the Indian Penal Code and sentenced o R APPELLANT Dhéni Ram Son of Khora Ram, (_I_N JAIL CUSTODY) aged about 49 years, Occupation v: Cultivator, resident of ViHage Saraipani, P.S. Bagicha, Distt.— ~‘ Jaspur (Chhattisgarh). RESPONDENT ‘ State of Chhattisgarh, through: ‘ RS. Bagicha, Distt.—JaSpur (Chhattisgarh). ' rigorous imprisonment for life and mm of Rs. 1000/ - in default of payment of fme amount additional rigorous imprisonment for 1 month. Conviction is impugled on the ground that without any iota of evidence sufflcient for conviction of the appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. Brief‘case of the prosecution is, on fateful night of 20/3/2003 at about 11 P.M. present appellant along with other persons were present inside the room at village Saraipani District Jashpur and 8 years aged grl PWS Ku. Savita was also present. present appellant was doing the work of witchcraft. After some time other persons came out from the house and only Indarram, present appellant and PW5 Ku. Savita were present inside the room. Appellant bolted the room nom inside and caused repeated injury to Indarram by axe. Indarram died on the spot. Persons present out side the room tried to open the door but they‘failed. Lastly they approached to the Police, then Investigating omcer PW9 C.S. Shanna, another Police Officer came to the spot and compelled the appellant for opening the door. Appellant opened the door. Appellant was holding axe . stained with blood. 8 years aged girl PW5 Ku. Savita was also in his hand, dead body ,of Indarram was lying on the floor stained with blood. Immediately Police i Personnels snatched the axe &om the appellant. PW9 C.S. Shanna recorded Marg intimation vide Ex. P—13 and Dehatinalshi vide Ex. P- l4. After summoning the witnesses vide Ex. P—l inquest over the dead body of deceased lndarram was prepared vide Ex. P—2. Blood stained and plain soil, blood stained mat, blood stained underwear‘ were seized from the spot vide Ex. P—3. Blood stainedaxe was seized n‘om the appellant‘vide Ex. P—4. Dead body was sent for autopsy to Community Health Center, Bagicha vide Ex. P- l6. PW6 Dr. C.D. Bakhala conducted autopsy vide Ex. P—7 and 'kf found following injuries:— (1)- Incised wound of 6 X 1 V2 x 5 c’m. over left ankle joint comprising fracture of tibia and fibula bone. (2)— Lacerated wound of 3 xix 2 ‘/2 c.m. over left side of the nose comprising nacture of nasal bone. (3)— Lacerated wound of 2 ‘é x l V2 x 2 c.m. over left zygomatic process. (4)- Lacerated wound of 2 x 2 x 3 c.m. over left hand and humorous bone was found fracture. (5)- Lacerated wound of 5 x 2 x c.m. over left tempro—parietal part including compound fracture of the bone. “A 4 (6)-Abrasion of 2 1/2 x 2 c.m. over left hand. (7)— Multiple abrasions over left hand. Cause of death was shock and death was homicidal in nature. 4. Patwari prepared spot map vide Ex. P—lO. Axe was examined by doctor vide Ex. P—9. First Information s report was lodged vide Ex. P— 19. Sealed blood stained cloths of deceased Indarram was seized vide Ex. P-6. Sealed articles were sent for chemical examination vide Ex. P—21. Presence of blood over axe and cloths of the appellant was confirmed vide EX. P—22. 5. After recording the statements of the witnesses under, Secu'on 161 of the Code of Criminal Procedure, 1973 (in short ‘th‘e Code’) and on completion of the investigation, charge sheet was hled against the accused/appellant in the Court of Judicial Mag‘strate First Class,’ Jashpur, who in turn committed the case to the Court of Sessions Judge, Jashpur. 6. In order to' prove the guilt of the appellant/accused prosecution examined as many as 9 witnesses. Accused was examined under Section 313 of the Code in which he denied the circumstances appearing against him and claimed innocency and false implication in crime in question. After providing, an opportunity of hearing to the parties learned Sessions Judge, Jashpur has convicted and sentenced the accused/appellant as aforementioned. Learned counsel for the appellant Mr. V.P. Gupta, and learned Dy. G.A. for the State/ respondent Mr. Sandeep Yadav are heard and perused the material available on r record including the judgment impugned. Learned counsel for the appellant vehemently argued that conviction is substantially based on evidence of child witness PW5 Ku. Savita whose evidence does not inspire confidence, trustworthy and is not safe to rely. Prosecution has not proved any motive for commission of on‘ence therefore appellant is entitled for acquittal. On the other hand learned Dy. G.A. for the Sate/respondent opposed the‘appeal and submits that evidence of child witness PW5 Ku. Savita is sumcient for conviction of the appellant. Appellant was found inside the room where Indarram died as a result of fatal injury. Appellant has not oEered any explanation that how Indalram has died. In these circumstances only inference would be possible that appellant has caused fatal injury to the Indarram. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case homicidal death as a result of fatal injury found over the head, leg and hand of deceased Indarram / has not been substantially disputed on behalf of the appellant on the other hand, otherwise also established by the evidence of PW6 Dr. C.D. Bakhala and autopsy report Ex. P-7 which reveal more than 7 injuries including h‘acture of scalp bone, leg and hand were found and death was homicidal in nature. As regard the complicity of appellant in crime in question, Prosecution has adduced evidence of eye witnesses and circumstantial evidence. Child witness PW5 Ku: Savita. She has deposed in her evidence that present appellant was discharg‘ng job of witchcraft inside the room and at the time of causing injul'y to Indarram only 3 persons were present inside the room namely present appellant, deceased Indarram and herself. As per her evidence present appellant bolted the door h‘om inside the room and caused repeated injury to Indarram by axe. Appellant also took her in his hand. Defence has cross examined this witness but has not able to illicit anything in her cross examination to discredit her testimony. Deiinitely she is child witness aged about 8,years. Child witness is also competent witness the only thing is required that Court »; must insured itself that whether child Witness ‘ \ understand the duty to speak truth and is able to answer the ’question put to her/him with a view to ensure the aforesaid questions Court has asked questions to the witness and after satisfying itself Court has examined her. She has answer the question put to “f her by prosecution and also by defence. Her evidence inspireconiidence and is trustworthy. u: £ 14. As per evidence of PW9 C.S. Shanna, Police Officer, PWI Dhansingh, PW2 Ramdev Ram, PW3 Madanram and PW5 Ku. Savita PWS Ku. Savita, present appellant and deceased Indarram were inside the room while appellant was discharg‘ng the work of witchcraft. Appellant bolted door h‘om inside the room, at the same time he shouted then villagers called the Police Officers. Police Officers came and compelled appellant to open the door thereafter appellant open the door. He was holding axe stained with blood and 8 years aged child PWS Ku. Savita. Dead body of deceased Indarram was lying in the floor in injured condition then they immediately snatched the axe. Defence has cross examined these witnesses at length but has not been able to illicit anything in their cross examination to discredit their testimony relating to the faCt that present appellant, Indarram and Ku. Savita were not present inside the room. Present appellant has not bolted the door &om inside and dead body of Indarram was not found in injured condition. Definitely Indarram was alive just before the incident and was found dead with fatal injuries. Only 3 persons were present inside the room out of there, one person Indarram was found “dead. PWS Ku. Savita has offered explanation that how Indarram has received injury and died but present appellant has not offered any explanation that how Indarram received injures and how he died, although appellant was under obligation ‘to explain circumstances in terms of Under Section 106 of the Evidence Act. In absence of any explanation on behalf of the appellant only inference would be possible that present appellant has caused fatal injured to Indarram and has caused his death. 15. As regard the question of motive is concemed, the. motive is only aid in criminality and it can be inferred on the basis of weapon used, part of the body where injuries found and like other circumstances. In the present case injuries found over the body of deceased Indarram and weapon used are sufficient for drawing an inference that appellant has intentionally w. caused homicidal death of the Indarram. After appreciating the evidence available on record learned Sessions Judge, Jashpur has rightly convicted and sentenced the appellant as aforementioned 18. On close scrutiny of the evidence, we do not fmd any illegality in the conviction and sentence of the appellant. Criminal Tappeal is devoid of merits. u *3 Consequently, criminal appeal is liable to be dismissed na and is hereby dismissed. $ ; Sd/- Sdl— R.L. Jhanwar' T. P. Sharma Judge l Judge