"'^•t ^ ^' HIGH COURT OF CHHATTISQARH AT BILASPUR »i INtltlt Criaiinal Appeal ?Io.' APPELLANT (l2s jai!) VBRSUg' Ghasirain s/o Manglu aged about 30 years, R/o Tumdiguda, PS Bartur, District Daatewada (CG) gtate of Chliattisgarh, Through PS Bartlir CRIMINAL APPBAL U/S 374 (21 OF THB CODE OF CRIMINAL Shri Vinod Kuiuar Sharma, counsel for the appeUant. Shri SandeeT) Yadav, Dv. Goverruneat Advocate ibr the State. Divisioa Beaca:- Hon'ble Shri T.P. Sharma SB Hoa'bls Shri R.L.JIianwar.JJ Per T.P.Sharina, J. (30.11.2010) Challense in tMs appeal is to the iudgiaeut of conviction aad order of sentence dated 23.5.2002, passed by the Second Additional Sessions Judge, Bastar at Jagdalpur (CG) i& S.T.No.78/2002, wliereby and whereunder the learaed Additional Sessions Judge, after holding the appellant guilty for coTnmissioii of czUpable ho-micide aaiountmg to inurder of Jhunkibai aad conceaBng the evidence of ci-iiniaal case, convicted ftte appeUant under Sectioru302 and 201 of the IPC and sentenced for life imprisoniaent aad R.I. for 1 year respectively. ^> 2. The conviction is inipugned on fh.e groun.d that without there being any iota of evidence sufficieat for conviction of the .-_-'—-lf I^'SIH appeUaiit, Uie leamed Second Additioual Sessions Judge has convicted and sentenced fhe appeUant as aforem.entioned and thereby committed iUegality. 3. As per case of prosecution, on fateful day of 2.1.2002, at about 10,00 aai, appeBaat was working in his filed along with his wife- Jhunkibai. Kopebai (PWa8) was also working near the field of the appeUant. Appellant assaulted tds wife by spade and caused her death and thereafter, he dragged dead body of Jhunldbai and buried it after diggiag a ditch. On 4. 1.2002 appellant was going to Police Station at that time, Banshilal was also going to Police Station fhen on fhe way, the appeUaat aiade extra judicial confession betbre Banshflal that he has kiUed Ids wife and now is going-.. to PoMce Station. Banshilal (PW-4) narrated the iacident to fafher of fhe deceased Madvi Nehru (PW- 5), who lodged the FIR vide Ex. P/9 and m.erg uitimation vide Ex. P/8. The Investigatiag OfEicer left for the scene oi'occiirreuce and after suinnioniag witnesses vide Ex. P/ 13, inquest over fhe dead body was pi-epared vide Ex. P/14. Dead body was sent for autopsy to P.H.C. Gidam vide Ex. P/15, where Dr. H.L. Thakur (PW-1) conducted autopsy vide Ex. P/1 and found foUowing iryunes : i. Oae abrasion over abdoiaen of 5 x 1/2" ii. One incised wound over nose of 3x1° iii. Left eye was badly damaged. iv. Nasal bone was found fractured. v. Teiuporal bone was found fractured. Mode of deafh was shock due to excessive extemal and iateraal bleeding and death was homicidal iii nature. Patwari prepared spot m.ap vide Ex. P/3. Duriiig tbe course of investigatiou, appeUaat was taken into custody. He inade disdosuaTe stateinent ofspade vide Ex. P/ 11; same was recovered at the instance ofthe ^ ^ a.ppeUaat vide Ex. P/10. Plain soU. and blood staiaed soil was recovered from the spot vide Ex. P/ 12. Sealed clofhes of fhe deceased were seized vid"e Ex.P/7. Seized articles were sent for cheiiiical examination vide Ex. P/ 19. Stateiaents of fhe witnesses were recorded under Section 161 of thc Code of Crmuiial Procedure, 1973 ( ia'short the Code). •\, 4. After completion of iavestigation, charge sheet was filed before Chief Judicial Magistrate, Daatewada, who iu tuni coinniitted the case to tbe Court of Sessions, Jagdalpur, frosi where, tbe learaed Second Additional Sessions Judge received ftie case on transfer for trial. 5. In order to proye the giiUt of fhe accused/appellant, prosecution exaiuined as inany as 12 witnesses. Accused was examiaed under Sectiou 313 offhe Code, in which, he deiued the circuinstances appearing agaiast hiia, uinoceuce and false im.pUcation in crim.e in question was claimed. 6, After affordiag opportunity of hearing to the parties, the leamed Second Additional Sessions Judge has couvicted and sentenced the appeUant as aforesaid meuuoned. 7. We have heard ShriViiiod Kumar Sharma, leamed counsel for the appeUant and Shri Saadeep Yadav, learned Dy. Goveminent Advocate for ttie State, perused tlie judgment impugned and record of ffae trial Court. 8. Learued counsel for the appellant veheinently argued that evidence of Kopebai (PW-8) does not inspire confidence and is trusbvorthy on fhe ground tbat she has not seen the incident aad she has not stated the uicident to auy other person, which was not possible aad natural. Likewise, evidence of Banshilal (PW-4) also does not iaspire coitfidence relating to extra judicial !R:BfBih confession raade by the appeBaat to Mm. Therefore, in absence of aay other evidence, conviction of the appeUaiit under Section 302 aiid 201 ofthe IPC is not sustainable under the law. 9. Oa the ofher liand, learued counsel for the State opposed fhese arguiueiits and subiaitted that conviction of the appeUant is based on direct evidence of^Kopebai (PW-8) and the extra judicial confession inade by the appellant before Banshital (PW- 4); evidence of both the witnesses tuspu-es confideuce and is trustworthy. He submitted that evidence of Kopebai (PW-8) cannot be discarded only on the ground that she has not stated the uicideut to any other person. She has explained that after the incident she was ia fear, therefore, she has not narrated the incident to anybody, whlch appears to be reasonable. 10. Ia order to appreciate tb.e ai^uiaents advanced on behalfof the parties, we have examined the evidence adduced on behatf of the prosecution. 11. In the present case, hoiaicidal deafti as a result of fatal iajury found over fhe body of the deceased has not been substantially disputed on behalf the appeUant, on fhe other hand, it is established by the eviden.ee of Dr. H.L. Thakur (PW-1) aiid autopsy report, Ex. P/ 1 aiid death was homicidal ia nature, 12. As regaids complicity offhe accused/appeBaitt ia cruue ta question is concemed, conyiction of the appeUant is based on direct evidenced of Kopebai (PW-8) aad fhe extra judicial coniession made before Bansfaaal (PW-4). Kopebai (PW-8) has deposed in her evidence that at the tune of iacident she was worldng near the place of iiicident. The appellant assaulted his wife by a spade aad when she'died, appeBaat dragged the dead body iu Iiis field and dug a diteh and buried the dead body of €:=:y Jhunkibai ia the ditah. After the mcident she was in fear, therefore, she has not narrated the incident to aaybody. 13. Defence has cross exaiauied this witness at lengfh and she has specificatly deposed that she has seen the incident, but due to fear she has not narrate4;the incident to any other person. She further deposed that sUe has stated the uicident to Police. Her conduct is obvious natural. BanslMlal (PW-4) has deposed that wtule he was going to PoUce Station for recording the nam.e ofhis chflldj-en, the appeUant met him on the way and laade extra judicial confession before hiui fhat he has killed his wife. He also deposed that fhe appeUaat told him tbat he shatl mtunate the iacident to his fafher in law i.e. Madvi Nehru then he nan'ated ttie incident to Madvi Nehru, father of the deceased, and appeUaat went to Police Station. In cross examination he has acfanitted that firsfly the appeflant went to Police Station. He denied fhe suggestion that fhe appellant has not made any extra judicial confession to him. FIR Ex. P/9 recorded at fhe uistaace of Madvi Nehru (PW-5) revealed fhat the factiua of extra judicial coiifessiou was narrated to him by Baashilal (PW-4) and on the basis of such infomiation, he has lodged the FIR. Evideace of Kopebai (PW-8) and Banstulal (FW-4) inspires confidence and is trustworthy. After appreciating the evidence available on record, fhe learned Second Additional Sessions Judge bas convicted and sentenced fb.e appellaiit as aforesaid uien.tioned. Evidence of Kopebai (PW-8) clearly revealed fbat fhe appellaat has comiiutted culpable hoinicide amounting to niurder of lus wife aad haa concealed the evidence by buxying it ia a ditch, therefore, conviction and sentence of the appeUaiit under Section 302 and 201 offhe IPC is sustamable under the law. •^fl) 14. On close scrutmy of fhe evidence, we do not find auy illegality or infirmity ia fhe judgment ioipugned. ConsequenUy, ftie appeal beiag devoid'of nierits is liable to be disinissed and it is hereby disnussed, -— ———— Sd./- T-P. Sftarma Sd/- R.L. Jhanwar Judge ^^