..•' ^ ^ t';4 i ^S^^ ^ ..^..-,,. ~\ WS&.. 'a '•<%.1 .:" "^ :?v ^y^^^ '''"•^^^y?"^-^ ^. '>^. HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P. Sharma & Hon'ble Shri R.N. Chandrakar. JJ. Criminal Appeal No. 346 of 2007 Appellant (in jail) Vs. Respondent. Pandit Ram son of Raja Ram Kewat, aged about 58 years, resident of village - Bhandora, P.8., Bilaigarh, Distt. Raipur (CG). State of Chhattisgarh through P.S. Bilaigarh. (Criminal Appeal underSection 374 (2) ofthe Cr.P.C.) Present: Ms. Uma Tiwari, counsel for the appellant. Mr. Neeraj Mehta, Panel Lawyer for the State. ORAL JUDGMENT (Deliveredon 4-8-2011) Per T.P. Sharma. J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 29-3-2007 passed by learned 2nd Additional Sessions Judge, Baloda Bazar, Raipur, in Sessions Trial No. 347 of 2006, whereby and whereunder learned Additional Sessions Judge, after holding the appellant guilty for causing culpable homicidal death amounting to murder of his wife, convicted the appellant under Sections 302 of the IPC and sentenced him to undergo life imprisonment and fine of Rs. 10,000/-, in default of payment of fine to undergo further Rl for five years. '•••: '^.^--.. ..-/r!'.^-. (^- (^ Conviction ofthe appellant is impugned on the ground that without there being any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed an illegality. As per case of prosecution, unfortunate deceased Budhwara Bai was residing with her husband, present appellant in the same house. On fateful day of 5-7-2006 at 6.00 a.m., appellant who was suffering from paralysis for the last 4 -5 months, annoyed and caused fatal injuries to hiswife Budhwara Bai by axe over neck, head and forehead, resulting into her death, thereafter he came out from his house and made extra judicial confession before Kamlesh Pratap Singh (PW/1) and Puniram (PW/2) who is son of deceased and appellant. Puniram (PW/2) son of deceased went to Police Station Bilaigarh and lodged first information report vide Ex.P/5, merg was recorded vide Ex.P/6, Investigating Officer Deen Bandhu (PW/9) left for scene of occurrence and after summoning the witnesses vide Ex.P/1, inquest over the bodyof the deceased was prepared vide Ex.P/2, spot map was prepared vide Ex.P/7, blood stained soil and plain soil were seized from the spot vide Ex.P/14, dead body of deceased was sent for autopsy to Government Hospital, Bilaigarh, vide Ex.P/19 where Doctor Harnath Verma (PW/8) conducted autopsy vide Ex.P/16 and found following injuries; i) incised wound of 6x3x1 cm over right border of back of neck and iii) lacerated wound over 2x1 x.5 cm just below the left eye-brow and mode of death was due to hemorrhage and shock and death .^ \ •-^\. ^ lfe.. 8. was homicidal in nature. During course of investigation accused was taken into custody and he made a disclosure statement of axe vide Ex.P/11 and same was recovered at the instance of appellant vide Ex.P/12, blood stained clothes of appellant were seized vide Ex.P/15 and sealed clothes of deceased were seized vide Ex.P/4. Statement of witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court ofAdditional Sessions Judge, Baloda Bazar, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. In order to prove the guilt of the appellant the prosecution examined as many as nine witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him, innocence and false implication in crime in question is claimed. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid mentioned. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment Ms. Uma Tiwari, learned counsel appearing for the appellant vehemently argued that conviction is substantially based on the --< ,^'.-^ ;-? ^m!- '^^^Ii^ y J fe^ t 4 evidence of extra judicial confession made by the appellant before Kamlesh Pratap Singh (PW/1) and Puniram (PW/2) who is son of deceased and appellant. The evidence of aforesaid witnesses does not inspire confidence and trustworthy and same is not safe to rely for convicting the appellant. The evidence of the prosecution witnesses are contradictory and there is inconsistency in their statements. On the basis of contradictory evidence, conviction of the appellant is not sustainable underthe law. 10. On the other hand, Mr. Neeraj Mehta, learned Panel Lawyer appearing on behalf ofthe Stateopposed theappeal and submits that evidence of Kamlesh Pratap Singh (PW/1) and Puniram (PW/2) who is son of deceased and appellant before whom the present appellant has made extra judicial confession, inspires confidence and trustworthy and the evidence of the aforesaid witnesses is sufficient for drawing inference that present appellant has caused homicidal death of deceased Budhwara Bai with intent to cause her death. The court below after considering all evidence and aspects of the case, has rightly convicted and sentenced the accused/appellant. 11. In order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalfofthe prosecution. 12. In the present case, homicidal death of the deceased as a result of fatal injuries found over the vital parts of deceased Budhwara Bai has not been substantially disputed on behalf of the appellant. '•'::':^.:N. i%;.. 1 ^ f^ c On the other hand, it is also established by the evidence of Doctor Harnath Verma (PW/8) and autopsy report (Ex.P/16), death of deceased Rahmin Bai was homicidal in nature. 13. As regards complicity of the appellant in the crime in question, conviction of the appellant is based on evidence of Kamlesh Pratap Singh (PW/1) and Puniram (PW/2) who is son of deceased and appellant before whom the present appellant has made extra judicial confession. As per evidence of Kamlesh Pratap Singh (PW/1), appellant and his wife, deceased Budhwara Bai used to quarrel with each other and before one week of the incident he was called there. On being called, he advised the appellant and his wife not to quarrel. On 5-7-2006 at about 5.00 a.m. in the morning when this witness was moving near the square in a village, appellant came to him and made extra judicial confession that even after his advice, his wife had not changed her behaviour, therefore, he killed his wife. Thereafter, this witness along with other villagers went to the house of the appellant where they saw badly injured and blood stained body of deceased. They also informed the children of appellant and Police about the incident, Puniram (PW/2) son of deceased has also deposed that after he came to know about the incident he went to the house of his father where his father was present and dead body of his mother was lying and the appellant told him that he had killed his wife Budhwara Bai by small axe i.e., mother of this witness. Thereafter, he went to Police Station and lodged first information vide Ex.P/5. ,^^^.^\\' ^^y^ /y"^ ^ 1»:».I c 14. Defence has cross examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their version, especially relating to the fact that the present appellant has not made extra judicial confession before them. As per evidence of Kamlesh Pratap Singh (PW/1), soon- after the commission of offence/murder, present appellant reached to square and made extra judicial confession before him. Thereafter this witness along with other villagers went to the house of the appellant. The incident took place in the house between 5-6 a.m. in the morning. Presence of appellant along with his wife was not unnatural. Extra judicial confession made immediately before these witnesses just after the incident was also not unnatural. The evidence of these witnesses inspires confidence and trustworthy and same is sufficient for drawing inference that present appellant has caused homicidal death of his wifeBudhwara Bai. 15. As regards question of intention is concerned, evidence can be gathered on the basis of injuries found over the body, nature of injuries, kind of weapon used, part of the body effected and other similar circumstances. 16. In the present case, the incident took place in the house between 5-6- a.m. in the morning and the deceased Budhwar Bai,wife of appellant was helpless and even she was not in a position to save herself, in that position the appellant caused repeated blows by axe over neck, head and forehead of the deceased which finds place in autopsy report which reveals that injuries ^•^^. L caysed by axe were resulted in homicidal death which can only be possible as a result of repeated injuries on the same part of the body which shows clear intention of the appellant for causing homicidal death of deceased. 17. After appreciating the evidence available on record, learned Additional Sessions Judge, has convicted and sentenced the appellant as aforesaid mentioned. 18. As regards sentence is concerned, as per evidence adduced on behalf of the prosecution, present appellant is not a rich man and and was suffering from paralysis for the last 4 -5 months before the incident took. In these circumstances, fine amount of Rs.10,000/- awarded to the appellant is also not proper. 19. For the foregoing reasons, the appeal is partly allowed and conviction of the appellant under Section 302 of the IPC is maintained. Instead of life imprisonment and fine of Rs.10,000/- under Section 302 of the IPC, the appellant is sentenced to undergo life imprisonment and fine of Rs.200/-, in default of payment offine, to undergo further Rl for one month. Raju Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge