@ H 55URT OF CHHAT DIVISION BENCH: HON'BLE MR DHIRENDF { HON'BLE MR. DILIP RAC l Presem‘: Lrhe appellant I Mr‘s. Savi'ra Tiwari, AdvocaTe for ‘ x\ /i, ~, TISGARH AT BILASPUR :A MISHRA & ISAHEB DESHMUKH JJ CRIMINAL APF ‘EAL NO 964/2003 3 year‘s, Kachhadi, Kor‘iya (C.G.)~.~ f Chhah‘isgar'h Through fhe Police Sonha‘r, Districf Kor'iya Sonhat, s EUDGMENT (25*h Febi~uary, 2009) —’; ‘;'Jla.."1:v1, a \Rgv1"a. fag. a?» ORAL J; Dhirendm Mishm .T: » This appeal is direc’red agginsf Thé judgmenf of convic‘rion and order of sem‘ence dafed 2"d July, 2003 passed by learned Addifional Sessions Judge, BaikunThpur, Koriya in S.T. No.161/O3 whereby Iear'ned Addifional Sessions Judge offer holding the accused/appellan‘r guilty for commission of offence under Section 302 of IPC, sem‘enced him to undergo R.I. for life and to pay‘a fine of Rs.1;000/~, in default \ of paymen‘r of fine To fur‘rher‘ undfer'go R.I. for Three mom‘hs. r Mr. Akhil Mishm, Dy. Govt. Advocza’fe for fhe respondenT-Sfa‘re. 1i alias Jogi, S/o Kashimm Cherwa, P.S. ' \ 1 mm (Wm 1 1 i Wmafg'étfaw %3ifem am APPELLANT Chain 5t § a aged 4 Dis’rr'icf Vs RE5PONDENT STa’re o . Sfm‘ion n =A W,‘W .5“ we“ §5§ralEQl mm (Wm w€mw§=ti$ E Bmufsaaara‘w Emm”a m%fg'® fat!“ ‘iéam' m2; _. LIE prosecu Ion In rie i Case of The , s T cn‘ accused Chai‘agdi ‘ married Ram Bai in The year 1 81, however, deceased Dinaram kepf ‘ i Rambai as his wife in The year 982. On accounT of above animosiTy 1 The appeIIanT commiTTed murd r of Dinaram on 17.2.2003 aT abouT 3 9.00 p.m. by assaulTing him wiTh baTTIeaxe on his neck in The house of *éalabram (PW-5). ReporT of ncidenT was Iodged on 18.2.2003 by Bholeshankar, son of deceased inar‘am vide EXP-2 menTioning Therein ThgT because“ of animosiTy des r‘ibed above The appeIlanT quarreled wiTh The deceased and assaulTe him by baTTleaxe on The righT por-Tion of his neck. Karansai (PW-2) Tr'i d To inTer‘veneand in ThaT process he also susTained injuries. ComplaiinanT Bholeshankar (PW—1) was also assaulTed by The appellanT. i AfTer regisTering The offgence, The police lefT for The scene of occurrence and afTer giving noTice To The Ponchos prepared inquesT (Ex.P—7) over The dead body. SiTe plan (Ex.P-4) of place of occurrence was prepared by The InvesTigaTing Officer. Dead body of Dinaram was senT for auTopsy To Primary HealTh CenTre, SonhaT under Ex.P-11 where Dr. N.P. Bhargava (PW-10) conducTed posTmorTem. The docTor performing auTopsy found incised wound of size 6”x5"x3" over back siTe of neck, % parT of neck was cut including bone of neck. The \'\d\ocTor opined The cause of deaTh as asphyxia due To neck injuries and r i m 2cm m (W) ‘ WW1??§€TW WWW ”3": $a1‘faqm 1 ‘ l 1 1 \ icar‘dio respirm‘or'y akresf. Deaf occurred within 24—48 hours before postmor’rem and i’r was homicidal 'in nafure. I ‘ % During inves’rigaTion, on 18.2.2003 vide Ex.P-5 weapon of {offence ba’r‘rleaxe, was seized‘ n being produced by Koransai. Plain soil and blood sTained soil was se zed from The spo‘r vide EXP—8. Blood slained‘full pan‘r of The-accu ed was seized vide Ex.P-9. Seized arficles i.e. blood s‘rained soil, p in soil, blood stained baffleaxe, full pan'lA of fhe appellant eTc were enT for chemical examination to FSL vide Ex.P-lO, however, the re ort of FSL dated 25.2.2003 was available but the same has not be n exhibited andiproved. Injured witnesses Karans i (PW-2) & Bholeshankar (PW-1) were also sent for medical examinati n vide Ex.P-12 & Ex.P—13 where Dr. N.P. Bhargava examined them and found one incised wound on the left temporal part of size 1x %"x %" n the person of Karansai. The injury was described as simple in natur and caused by sharp edged weapon. Similarly, Bholeshankar (PW-1) s stained one abrasion on the middle part of the head of size %"x l? and above injury has also been described as simple in nature. Apcused was also sent for medico legal examination, he sustained abrasioln over his right cheek of size %"x 2 and another abrasion on the left ide of chest of size» %"x %" and both —\ l . I a 1 u , \\ i l l l l ‘L( . . ewwmwm l m W W200 Mm (Wa) E ww mm a: auaq ¥ nan 'q W ?:\agv ,M €3Wm fhe InJur'Ies have b‘een ‘describ"e% as simple in nature vide Ex.P-15. The i appellant was arrested on 19.2.2 03 vide arrest memo of Ex.P-18. AfTer completion of usual invesTigation, charge shee’r was filed ‘ in the Court of Judicial Magis‘tr te 1“ Class, Baikunthpur, who in turn commi‘r‘red The case To learne Sessions Judge, Baikunfhpur from w‘where‘ learned Additional Ses ions Judge received the case on Transfer for Trial. Learned frial cour‘r framed charge under Section 302 of IPC against The appellanf The appeHanf abjured his guiH. The prosecution irf order to establi h the charge against the accused examined 13 witnesses in all. T ereafter, statement of accused was recorded under Section 313 (ff Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case and l pieaded innocence and false impliication. However, he did not examine any witness in his defence. Learned Additional Sessions Judge'after hearing the arguments of learned counsel for the respective parties, convicted and sentenced the accused/appellant, as aforementioned. Learned counsel for the appellant submits that conviction of the appellant is based on the evidence of Bholeshankar (PW-1) and Karansai (PW-2), however, from perusal of evidence of Bholeshankar it would be evident that he has not Witnessed the incident. Referring to i i E i l V §, i W 1. ‘ W?»WW wf. $aiia‘aaxr9n3. ‘ i a- o W e evu ence i T Is Witness i’r was arguedwfFaT §Bholeshankar has deposed as Tu or'ed by Karansai (PW-2). There is a idispu’re be’rween Karansai and he deceased in relafion f0 flow of ‘wafer‘, in ’rhe field and he has. also deposed Thaf because of above dispu’re Karansai used To claim 'r a’r he will no’r spar-e Dinaram and kill W. However, The ‘rr‘ial cour ignoring fhe above vi’ral evidence available on‘r‘ecor‘d has convi ed The appeHam‘ relying upon The evidence of Bhpleshankar & Kar nsai. Karansai has also admiTTed That he had a dispuTe wi’rh The decea ed in reiaTion To flow of waTer', he did noT raise alarm aT The Time of incidenT and did noT Tell abouT The incidenT To anyone immediaTely a Ter The incidenT. l ‘ On The oTher hand, learned counsel for The STaTe has supporTed l l The impugned judgmenT and argued ThaT There are Two eyewiTnesses To i The incidenT. In The prompTIyl lodged FIR The appellanT has been l named as perpeTraTor'of offence Eyewitnesses have also susTained’ injuries in The same incidenT and Their injuries have been duly proved by The docTor (PW-10). There is a sTrong moTive for commission of offence To The appellanT as his wife was subsequenTly kepT by The deceased as his wife. Even Rambai (PW—3), who was living as wife of The deceased, has corroboraTed The case of The prosecuTion ThaT The appellanT nourished animosiTy againsT The deceased as he kepT her as x mzao ' maxim (W) -6; . an fe’aw i awmm ¢ i l t wwwm i . a o s a e fiat Immediately after the incident'she ‘ was informed by Bholeshanka‘" efc. fha‘r Chainsai murdered the i deceased. ? We have heard Mrs. Sév a’Tiwar'i, Advoca‘re fgr‘ The appellant and Mr. Akhil Mishr‘a, Dy. Gove nmem‘ Advocate for fhe responden’r/ $5;afe.‘We have also perused The record & judgmen’r of ’rhe Trial cour'r. As far as The question of homicidal death of Dinaram is concerned, th‘e same has not be n disputed by Iearned counsel for the appellant. Even otherwise, from the evidence of injured eyewitnesses Karansai (PW-2) & Bholeshank r (PW-1), who‘ have witnessed the incident and stated before the (fourt that the appellant assaulted the deceased with battleaxe on his réeck, as also from the evidence of Dr. N.K. Bhargava (PW-10), who has fconducted the postmortem and found injuries over the person of deceased as described herein before and has further opined that cause of death'is homicidal in nature, it is i established that death of the deceased Dinaram was homicidal To establish the involvement of the accused/appellant in the crime in question, the prosecution has examined eyewitness Bholeshankar (PW-1) and Karansai (PW-2). Bholeshankar (PW-1) in his examination-in—chief has stated that on the date of incident at around 9.0 p.m. marriage function was going 4 l . §§% u:\ lo; 7f \ ”7%”. wW m wits mmwma my: afga m _ '7 .- \, mmfiffgté’fw ‘GFT’TFI-fre Wo‘use of GuIaB ’wFuer‘e Is aT er was siTTing. He furfher sTa’red Tha’r his moTher‘ Rambai His faTher was assaul‘red by wife. Chainsai by baffleaxe on his nerclk as a r'esuH he fell on The ground and biood sfar‘red oozing ou’r of ‘rhe. neck. He cannot say as To why he When The accused was assaulTing Dinaram, he & n ThaT process he was also assaulTed Karansai also sustained injuries over They were sem‘ for In para-4 & 6 of cross— examinai’ion he has admi‘rTed Th5? ‘rhey had cordial rela’rionship wi‘rh father Dinamm kep‘r her as his Alas married To Chainsai, however, his mssauh‘ed him. Karansai Tried ’ro infervene and byAba‘r‘rleaxe‘over his lef‘r brow. his head. Chainsai, ‘rhey were in Talking TerEms and They used fo visif each o’rhers house. He has also deposed Tho? There is a dispuTe beTween Karansai and The deceased in rela’rion To flow of waTer in The field and They had quarreled earlier for-The aforesaid reason. He has also deposed ThaT Karansai used To say ThaT he would noT spare Dinaram and kill him. He has furTher sTaTed ThaT he nar‘raTed The incidenT To The police as insTrucTed by Karansai. However, he sTuck To his claim ThaT Karansai had snaTched The baTTleaxe from Chaisai. He has furTher denied ThaT They have falsely implicaTed The appellanT To save Karansai. He denied The suggesTion ThaT Karasain assaulTed his faTher by baTTIeaxe. J‘\x \\\ i "‘~>\ N t _ g. ‘l,’ .i' @3206 Karansai snaTched The baTTleaxe. medical examinaTion To The hospiTal. mzoe may-w (Wu) mamw mvazraa‘m‘ ' -%/£ i éwmarés? l Karansai (PW-2) has also eifer‘a’red The version of Bhleshankar' (PW—1). He has deposed Thu on ’rhe da‘re of inciden’r deceased Dinaram was si’r’ring wifh hi wifh a small child on his lap. Bholeshankar‘ was si’r’ring a‘r av hart distance wi’rh Amarsai, at That time accused Chainsai, who ha covered himself wiTh shawl, came “There and s‘rar‘red assauHing Di ar‘am by baTTIeaxe as a r‘esuH' he fell down on ’rhe' ground. He and Bholeshankaf‘ bo’rh ran fowards fhe appelIanT, he‘snafched ’rhe baf’rl axe and in Tha‘r scuffle he susTained injury over h‘is head. Bholesh nkar also susTained injury over his chesT. After the incident th appellant fled from the place of occurrence. They saw that Dina am was already dead. In the cross- examination of defence, the defence could not elicit anything which makes his version unreliable and éhe stuck to his claim that he saw the appellant assaulting the deceased by battleaxe over his neck and in the process he also sustained injuries. He stoutly denied the suggestion that he himself assaulted Dinaram and implicated the appellant with the help of other witnesses. Rambai (PW—3) widow of deceased Dinaram, has also stated that the appellant nourished grudge against the deceased as the deceased has kept her as his wife. He was informed by Bholeshankar etc. that . Nappellant had assaulted Dinaram. i Though in the cross examination she / -l 'i l for g r Vi I @ m'zoa V mm'{W) l £ 3 has admi‘r‘red Tha’r There was no animosi‘ry beTween ‘rhe deceased and The appellan‘r and ’rhey were in T king Terms. mmm Acl, t $3ifmemém I l i \ IT is Tr'ue The? There are cerTain discrepancies in The evidence i of Bholeshankar (PW—1) as pbi Ted ouT by learned counsel for The appeilanT. However, on close scr Tiny of The deposiTion of This wiTness he find ThoT he has sTaTed in h s examinaTion-in—chief ThaT while his faTher was being assauITed by e appellan’r/he and Karansai (PW—2) Tried To inTervene and in ThaT ocess he also susTained injury from The handle of“ baTTleaxe. His cbove version is corroboraTed by his medico Iegal examinaTion reporf and The same sTands unchallenged by The defence in The cross-exanTinaTion. Therefore, we are of The opinion ThaT version of Karansai (PW-1) finds corroboraTion from The sTaTemenT of This wiTness in maT rial parTiculars. OTher wiTness namely Am rsai (PW-4), who reached The place of incidenT immediaTely afTer The incidenT, has deposed ThaT when he reached There, he found The appellanT and Karansai engaged in scuffle. h ii i He has alsa sTaTed ThaT Karansai informed him ThaT Chaisai killed l i Dinaram. l 1, l Gulabram (PW—5), who als$ reached on The spoT soon afTer The incidenT, has deposed ThaT when he reached There he found The _ K L, M_ l M l - wwwwagamxalwmVm :§a:mmawy§@mmg1%anm§‘ mm Wt 209 ‘ WW(3§5§€@) \ > g WWW ,—1Q . mm‘ f3ét $aimm m deceased, his son Bholeshankar nd ’Kar‘ansai presenf on The spot and Chainsai had fled from The place f inciden‘r. On due considerm‘ion of he evidence of Kamnsai (PW-2), we are of The opinion Thaf he‘is injured eyewi’mess of incidenT, his evidence is reliable, his credib li’ry could not be impeached by The i “defence, his version finds corro oraTion from oTher wiTnesses and The Trial courT has righTly held T appellan‘r ’guil‘ry of The aforesaid offence by ~relying upon The ,evidence of Karansai (PW-2) and Bhoieshankar “(PW—1). For The foregoing reasons, we are of ‘The considered opinion ThaT There is no illegaliTy or in‘iirmiTy in The judgmenT of The Trial courT, The appeal of The appellanT being devoid of subsTance is liable To be dismissed and The same is herpby dismissed. /, eshmukh g Roshan/- ... Sdi- , l i w u Diiip Raosaheb D ’ Sd/- . DHJRENDRA MISHRA Judge Judge