HIGH COURT OF CHHATTISGARH, BILASPUR Criminal Appeal No.416 of 2005 APPELLANT: unJan Niranjan Kod S/o Thakur Baba o ged years R/o Village Mohka P S Basna Dlstt Mahasamund (C G ) Kd A 24 Versus The State of Chhattlsgarh Through PS Basna Dlstt Mahasamund (C G ) RESPONDENT: {Criminal appeal under Section 374 (2) of Cr.P.C.} Present: Miss Sangeeta Mishra, counsei for the appellant. Mgpleeraj Mehta, Panel Lawyer forthe State/respondent. v Dmsmn Bench - a Hon’ble Mr T P Sharma and 'Hon ble Mr. R.L. Jhanwar, JJ ORALJUDGMENT Qo1LmM0) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 9—3—2005 passed by the 2nd Additional Sessions Judge, Mahasamund in Sessions Trial No.3/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commrssron of culpable homrcrde amounting to murder of Kanharya conVIcted the appellant under Section 302 of the i P C and sentenced him to undergo Imprisonment for life & pay fine of Rs.5,000/—, in default of payment of fine to further undergo RI. for two years. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. DCase of the prosecution, in brief, is that two days before the date 'of incident ie 2 4 2004 the appellant friend of the deceased ie husband of Raikumari (PW—2) came to the house of Rajkumari when she was q With her kids her husband was not present the appellant demanded tobacco, thereafter, caught hold of the hands of Raikumari and tried to drag her inside for committing sexual intercourse with her to which she r denied and some how she rescued herself from the clutches‘ of the , appellant and fled away She also told that the appellant that she Will tell the lnCIdent to her husband On the fateful day of 2-4 2004 at about 5 30 p.m. deceased Kanhaiya went out from his house towards the vrllage by his cycle, at that time, theappellant came with axe and assaulted him wrth axe over his hand Deceased Kanhaiya rushed towards the ditch used for manure where he fell down then the appellant caused repeated assaults and caused Instantaneous death of Kanhaiya Rajkumarr (PW- 2) shouted for help on which Nlrdhar (PW 5) Alekh (PW 7) and other persons came at that time the appellant was present near the ditch and 2 thereafter he fled away Rajkumarl (PW 2) lodged FIR vrde Ex P 11 and ‘ she also lodged merg vrde Ex P 1O The investigating Officer left for the scene of occurrence and after summoning the Witnesses vide EX P 2 prepared inquest over the dead body of the deceased Vide Ex P 1 Plain scil bloodstained scil and three tiles stained With blood were seized from the spot Vide Ex P 3 Dead body was sent for autopsy to Community Health Centre, Basna. Dr (Smt) Jaishri Sahu (PW 6) conducted I utopsy vide Ex.P—14 and found followmg injuries — (1) incised wound of 3 c.m. x 5 c.m. x 5 c.m. over right leg. (2) Lip and Jaw were found cut (3) Multiple injuries Viz inCIsed wound over neck of 4 c m x 1 c m x“ ‘ 5 c.m. and 12 c.m. x1 c.m. x1 c.m.. I (4) Trachea, esophagus, brdnchitis were also injured, collar bone was also'found cut. v (5) lncised wound over 4 c.m. x 5Vc.m. x 3 c.m. ’ Cause of death was cardiac arrest due to injuries of vital organs of neck and death was homicidal in nature. Spot map was prepared by the investigating Officer vide Ex.P—8._ Axe was seized from the appellant Vide Ex P 5 Blood stained clothes of the appellant were seized from the appellant Vide Ex P 6 Sealed clothes of the deceased were seized Videw Ex.P-7. Axe was examined by Dr. (Smt) Jaishri Sahu (PW 6) Vide Ex P— 15. 4 w. . Statements of the witnesses were recorded under Section 161 of the Cr P C After completion of investigation charge sheet was filed before Ithe Court of JudICial Magistrate First Class Mahasamund who committed the case to the Court of SeSSions Raipur from where learned Additional Ses5ions Judge received the case on transfer for trial . r i ~ . . '. § ‘ i Mg - “Jim w“ w 's ‘ i a v In order to prove the guilt of the appellant, the prosecution has examined as many as eight witnesses. The accused was examined under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him, pieaded innocence and false implication. He has taken defence that wife of the deceased namely Rajkumari (PW-2) was having illicit relation with so many \pe’rsons and he was directed by the deceased' to watch Rajkumari (PW-2) and, therefore, on account of such watch,, she has falsely informed the deceased relating to use of criminal force on her for outraging her modesty. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned a‘nd record of the trial' Court. Learned counsel for the appellant vehemently argued that convictionofw, the appellant is substantially based on the evidence of the only eyewitness Rajkumari (PW—2) — wife of the deceased. Except darkness o h n the fateful night, there was no facility of light and Rajkumari>(PW-2) as not seen the appellant at the time of commission of offence. Under some assumption and suspicion she has lodged report against the appellant. Therefore, her evidence does not inspire confidence, it is not rustworthy and not safe to rely without corroboration from independent sources. . On the other hand, learned State counsel opposed the appeal and. submitted that the evidence of Ekaram (PW-1) & Rajkumari (PW-.2) —. sole eyewitness, is well corroborated by the evidence of Nirdhar (PW-5) & ‘ .l,‘ tr. r Alekh (PW-7) who immediately reached to the spot and seen the injured dead body of Kanhaiya lying in the ditch, and the appellant was standing near the ditch. 10.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 11:1?n the present case, homicidal death of deceased Kanhaiya has not been substantially disputed on ,behalf of the appellant, otherwise also itMis . established by the evidence of Dr. (Smt.) Jaishri Sahu (PW-6)-and autopsy report Ex.P-14 that the death of Kanhaiya was homicidal in nature. @ . . t ' . @ 12.As regards complicity of the appellant in the crime in question, cohviction of the appellant is substantially based on the evidence of Rajkumari (PW—2) - wife of the deceased. As per her evidence, two days prior to the incident, the appellant, who is friend of the deceased i.e. her husband, came to her house, he demanded tobacco and thereafter, tried to commit sexuai intercourse with her by holding her hands, some how she rescued herself from the grip of the appellant and fled away. She narrated the incident to her husband, thereafter, on the date of incident while the deceased has gone towards the village by cycle, the appellant all of a sudden came with axe and caused injuries and chased thew, , q, deceased, the deceased fell down in the ditch used for manure, the appellant caused repeated injuries on the deceased and caused his instmganeous death. She shouted for help on which Nirdhar (PW—5) & Alekh (PW—7) came and she told the incident to them. 13. Nirdhali (PW—5) has substantially corroborated the evidence‘of Rajkumari (PW-2) and has‘deposed that he heard that the appellant has killed deceased Kanhaiya. He has also deposed in para 3 of his cross- examination that he has not discussed anything with the appellant on the spot, which shows that the appellant was. present on the spot. «Alekh ‘V l b (PW-7) has substantially corroborated the evidence of Rajkumari (PW-2) and has deposed that after hearing the sound of Rajkumari (PW-2) that her husband has been murdered, he reached to the spot where the appellant was standing, he called other persons of the village, and at that time, the appellant was not present. z 14.Defence has cross-examined these witnesses and Rajkumari (PW-2). ln her’detailed cross-examination, Rajkumari (PW-2) has deposed that the appellant is the person who has caused injury and caused death of her husband She has denied the suggestion that she has not seen the InCIdent on account of darkness 4 ‘ 15.Evidence of Rajkumari (PW-2) well corroborated by the evidence of Nirdhar (PW-5) & Alekh (PW-7) inspires confidence, it is trustworthy and .,sufficient for drawing inference that the appellant has caused fatal injuries to deceased Kanhaiya resulting in his instantaneous death. The appellant was having grudge over deceased Kanhaiya for causing Injuries and he came With axe for causmg injuries to Kanhaiya which shows the grave intention of the appellant ConVIction of the appellant is