"^ •^-•// l>t-:-^€l^ ^(^&v \ HIGH CGURT OF CHHATTISGARH, BILASPUR ,'ai .»'anft.s Malunood ;2), Bntki, aged about 36 years, s/o Aiuanuliah Khan, r/o Yadav Chovi-k Ruabandha, P.S. Bhilaiiiagar, D.istrict Durg (CG) State of Chhattisgarti Through P.3. Pulgaon District Durg ?CG) Appearaace; Shri Satyendra Sahu, counsel for the appeUant, Shri Saiideeo Yadav, Dv. G.A. for the State. Divisioa Beacfa:- Hoa'ble T.P. Sharma & Hosa'ble Shri R.L.Jhanwar.JJ ,0 (10.03.2011) ><&-s> T iaraia, Challeiige in. this appeal is to. the judginent c'f conviction ,siid order of sentence dated 30.6.2006, passed by the Sessions ?T-r'i-^;= r^-rTt't-i- Pits'f-Tii^t Pi^-'.?'!'? f(~\C^\ •E?-' ?s T'Tvl.'- '">^F. f r>nri^ ^r1^^T-F'-h^T u UtlgG L^Ltl'^ L^iyLl'K-'L U Lll'g ^^\.?J 111 O, 1 . 1\<J> ^Ct-J1^ ^UU-t, WU'Sl'CUj and whereunder tae leamed Sessions uudge, after hoMuig the appeIS&iit guilti' for coiiiiaission of culpable hoiiiicide ai&oun.th.ig to ruuirler of to.is raiaor son Asliiq Khau agecl abo-Lit 3 5-ears aD.d atteia.pt to commit niurder of his wife Nastm. Begam., convicted fhe appeUaat uiider Sections 302 and 307 of Uie IPC aiid sentenced for Hfe iinprisoninent and fine ofRs.1000/-, iii default ofpayiaent ofSiie to farther undergo R.E. for 6 iD.oiiths; and R.I. for 10 years and fiiie ofRs.1000/-, io. default of paymeiit of fee te furti.ier undergo R.I. for6 months. 2. The coiiviction is impugned on fhe ground fhat wifhout tliere being any iota of evideiice sufficient for conviction of fhe appellaat, the leamed Sessions Judge has convicted aiid sentenced tlie appellaiit as a&rementioned aad thereby coiumitted iUegaUty. 3, As per case of prosecution, Nasun Begara, wife of the appellaat aad uafoi~t~uiiate niother of soa Ashiq, aged about 3 years was residing wifh the appeliaiit. 4 days prior to the iacide.nt i.e. on 19.11.2002, on account ofqiian-el appeUaat has tned to kul his wit'e Nasiin Begam. (PW-10) by pouriug keroseiie oil oa iier; • she rescue aiiyhovv aiid went to Potice Station and lodged fhe report aud fhereafter, she went to her brofher's house alosg n-itli her soii. On 19.11.2002 ia fhe evening appeUaat csune to her aad cliscussed for coiiiproinise aad told her that fhey are reqiured to go to Rasraada Factoiy for receiviiig payinent then she aioiig with her soa Asbiq proceeded for fhe Factory with fh.e appeuaat on his Hero Puch Bioped. After crossiiig Tol Naka, fhe appellailt stopped the inoped ia tlie forest aad took out knife froiii fhe dickey of tiie inoped and repeatedly assaiUted his wife- Nasmi Begam. over her head; he also assaulted his 3 years soa by kiiife aiid caiised his deatii. Nasim Begam (PW-10) feU dowa aad becoiae unconscious, fhereafter, the appeUaat left from fhe spot. Nasim. Begaia was taken by soiae pei'sons ia Jeep up to river bridge vAere poUce was present; she narrated the hicident to Police and lodged Dehati NaUshi vide E.x. P/ 14. They toob her to fhe hospital for treatiaent. FIR vide Ex. P/15 was lodged. Dead body of Ashiq was fouiid ui tlie field. Merg was recorded vide Ex.P/ 16 and P/ 17. Spot map was prepared vide Ex. P/18. After suiniaoniiig witnesses vide E.x. P/5, uiquest over fhe dead body ofthe deceased was prepared vide Ex. P/4. BIood staiiied clothes of Nasiin Begara were seized vide Ex. P/7. Ladies chappal was seized froia fb.e spot idde Ex. P/8. Moped Hero Puch, registi^ttioa S ^f% 1 book, Helinet were seized froni fhe spot vide Ex. P/9. Dead body was sent for autopsy to District Hospital Durg vide Ex. P/1. Dr. V,R. Mesliram (PW-1) conducted autopsy vide Ex. P/2 aiid foiind foUowuig injuries: iiicised wound over left parietal region of 3 3/4 x 1 cni x bone deep ii. incised wound over parietal region 3 in. number over left side of fhe right eye of 3 x 1 ciu x bone deep; 3 x '/a cin x bone deep; 2 x Vz cia x boae deep; iii. incised wouiid on right eye of 1 cia x lcia x lcra iv. iiicised vi-ound of */2 x Vs x '/a cia near left eve v, incised wound over upper part offhe nose of 1 x 1/2 ciu x bone deep vi. iacised Vi~ound over nose of lcia x lcni x bone deep; bone of nose was found cut; vii. in.cised wound on lips of3x 1 x 3 ciu. Fracture of parietal boae was found. Mode of death was shock aad haeinon'hage as a result of head injur^'. Patwari prepared spot inap vide Ex, P/ 3 and P/ 10. Articles of the deceased were seized vide E.x. P/11. Injured Nasim. Begaai was sent for medical exasiination vide Ex, P/21. She was exaiitined by Dr. Prainod Kuiaar Agrawal (PW-13) vide Ex. P/ 19 ajid found following injuries : niultiple stab wound of 3 x '/a" x bone deep over both. the parietal regions ii. iacised wound of A x 1A over left uiiddle fiiiger. Dead body of Ashiq was seized vide Ex. P/ 22. Bed head ticket was also seized. Doctunents relatuig to treataient of Nasim Begaia were seized vide Ex. P/24 to Ex. P/28. Stateuients ofthe witoesses were recorded under Section 161 of the Code of Cnmiaal Procedure, 1973 (in short the Code). v\ 4. After coiapletion of iavestigation, charge sheet was filed before tlie Judicial Magistrate First Class Durg, who in tui-n, coiainitted fhe case to the Court of Sessions, Durg, wbere the trialwas conducted. 5. In order to prove fhe guilt of tlie accused/appeUant, prosecution examuied as taaay as 19 witnesses. Accused was exaiained i.uider Sectioil 313 of the Code,- in wbich, he. denied the circuDistaiices appearing against him., uiiiocence aad false impUcation iii crime itl question was claim.ed. 6. After aBbrduig opportuuily of heariag to fhe parties, the leamed Sessions Judge convicted aad senteaced the appellaiit as rforesaid raentioned. 7. We have heard Sliri Satyendra Sahu, leanied couasel for the appellaiit aiid Shri Saxicleep Yadav, leamed Dy. Govemiaent Advocate for tlie State, perused tiie judgaient impugned and 1'ecord of fhe tiial Court. Leamed cozinsel for the appellaat veheruenfiy argued fliat in fhe present case, coaviction of th.e appellaiit is substaiitially laased on Uie evideiice of Nasim. Begam (PW-10), who was having en-mity with tlie appenaiit; she was not ready to live witii fhe appellaiit aiid was residiiig ia 'tlie house of her brother. Her evidence does not iiispire confidence and trastavorthy aad her solitaiT evidence. is not sufficieat for conviction aild sentence of the ap'peUant. 9. On tlie other hand, learaed counsel for the State velieEJ.ently opposed fhese arguiueiits aiid subaiitted that fhis is a case of brutal inurder of a lainor chiid of fhe appeUant tlimsetf, who was aged about 3 years; aad fatal iajun' to liis wife- Nasim Begaia. (PV/-10) in tbe lonely place, where 110 help for tt-eatm.ent or to save hersetfwas available. The appeUaut has acted in a ;--F""!W!'1K brutal m.anner. Evidence of Nasim. Begam. (PW-10) is sufficient for drawing an inference that present appellaiit has coiniBitted tiie offence punishable under Scctions 302 and 307 of the IPC. After appreciatuig the evidence available on record, the leanied Sessions Judge has rightly convicted aad sentenced the appeUant as aibresaid mentioned. 10. In order to appreciate the arguiiients advanced on behalfof the parties, we have exam.iaed fhe evideace adduced ou behalf of fhe prosecutioii. 11. In the present case, hoiaicidal death as injuiy found over the body of fhe deceased Ash years aud fatal iiyuries to Nasixa Begam., SLibstaiitiaily disputed on behalf of fhe hand, it is estabUshed by the evidence of Dr. V. 1), autopsy report Ex. P/2, evidence of Dr. Agrawal (PW-13), mjuiy report Ex. P/19, doci ti-eatment vide Ex. P/24 to Ex. P/28 aad hoiiiicidal in. nature. Injuiy found over fhe body (PW-10) over her head was fatal for her life. a result of fatal iq, aged about 3 has not been iit, on fhe oflier R.Mesl-u-am (PW- Pranaod Kiunar nents relatiag to of Ashiq was of Nasiin Begam. 12. As regards coinpUcity offhe accused/appeUaat in criine in qiiestion is coacemed, prosecution has examined Nasim Begain (PW-10) injured witaess, inoftier of the deceased -Ashiq and wife of tlie appeUcmt. As per her evidence behaviour of fhe appeUaat Vvas not noirual. He used to torture her. 4 days before the ia.cident, he tned to kill her by pouring kerosene oU. She has also lodged report of this uicident to fhe police Station. Ou fhe date of iiicident, while she was residing iii ttie house of her broftier alonj wifh her son, appeUant caine and discussed for coiaproiiiise aad told her that tfiey are required to go to Rasinada Factoiy for 1-eceivin.g payment then she along ^vith her son Ashiq proceeded with fhe appeUant on his inoped. After crossiug toU naka, appeUailt stopped his inoped in. fhe forest and thereafter, he took out knife aad caiised repeated blows over her head. Her son was shoutiag fhen fhe appeUaiit also assaulted Ashiq by kaife. She became uaconscious aad when she regahied consciousaess then anyhow she reached near the river bridge, where PoUce was present; she narrated the incident to police. She was miiuediately shtfted to Hospital for treatment. On second day, she was m.form.ed ftiat dead body of her son was found in fhe field. Defence has cross examined this witness at lengfh, but has not been able to eUcit anyfhing to discredit her testimony. Her evidence is weU corroborated by fhe FIR, nierg aad autopsy report. Evea her dyuig declaration was also recorded by Navin Thakur (PW-8) Executive Magistrate vide Ex. P/13. Factuia of Dehati Nalisbi is also coiToborated by fhe evidence ofR.S.Thakur (PW-9) Sub Inspector. Evidence of Nastm Begain. (PW-10) injured witness is weU corroborated bv the inedical evideuce aiid proin.pfly lodged Dehati NaUshi. This evidence is suJBcient for drawirig an. inference that Uie appeUant has brutally inurdered and caused honucidal deafh of his son and caused fatal injuxy to his wife Nasim Begam.. 13. As regards niotive is conceraed, siotive only aids isi crmiinality, in case of direct evidence it losses its ttaportance. Motive cail fce iaferred on fhe basis of weapon used, part of fhe body efiected, nature of injury and ofher sinulaT circuiastances. In tb.e present case, inultiple injuries have been found on flie body of deceased Ashiq, 3 years child, son of the appeUant aod laultiple stab wounds have been noticed on th.e head of Nasim Begaxn wife of the appeUant. This shows inerciless aad brutal act of fhe appeUaut. It is sufiicient for di-awuig an iaference fhat fhe appeUaat has kffled his son aild attem.pt to coiniait inurder of his wife. After appreciating fhe evidence, available on recoi~d, learned Sessions Judge has convicted and aforesaid iiientioned. sentenced the appeUant as 14. On close scrutiiiy of the evidence, we do not fiiid aiiy fflegality or inlinnity ia the conviction aad sentence of tiie appeUant. Consequenfly, fhe appeal betng- devoid of iiierits is liable to be disinissed aad it is hereby dism.issed. Sd/- T-^Shar^ Judge Sd/- R.L. Jhanwar Judge