'^HWK^^SWiii ic 1 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: APPELLANT RESPONDENT HON'BLE MR. T.P. SHARMA & HON'BLE MR. R.L. JHANWAR. JJ. Criminal Appeal No. 40/2004 Vishun Ram S/o late Jagmohan Gond, Aged about 35 Years, R/o Gram Kuruwan, Jharpara, Police Station Bishrampur, District Sarguja, Chhattisgarh. VERSUS State of Chhattisgarh through Police Station Bishrampur, District Sarguja C.G. CRIMINAL APPEAL UNDER SECTIQN 374 OF THE CODE QF CRIMINAL PROCEDURE. Present:- Shri Abhay Tiwari, Advocate for the appellant. Shri Ashish Shukla, G.A. for the State/respondent. ^;.' ORAL-JUDGEMENT (Passedon 10/09/2010) The following iudgment of the Court was passed bv T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 22/12/2003 passed by 6th Additional Sessions Judge, Fast Track Court, Surajpur, District Sarguja in Sessions Trial No. 80/2003 whereby and where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of his wife Indrasobai ^..' convicted the appellanf under Section 302 of the Indian Penal Code and sentenced imprisonment for life. Conviction is impugned on the ground that without any credible and clinching evidence sufficient for conviction of the appellant Court below, has convicted and sentenced the appellant aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 15/12/2002 at about 9:00 P.M. present appellant and his wife deceased Indrasobai were in his house. Present appellant assaulted his wife by stick & crowbar and caused multiple & several injuries over her body, she shouted for help then villagers gathered. They tried to interv^ene but appellant caused repeated injuries to injured. Finally, persons gathered caught hold the appellant and appellant has also consumed liquor. PW3 Harinarayan Gond went to the Police Station and lodged First Information Report vide Ex. P-3. During course of transit to Hospital Indrasobai died. Marg was recorded vide Ex. P-7. After summoning the witnesses vide Ex. P-1, inquest over the dead body of the deceased Indrasobai was prepared vide Ex. P-2. Spot map was prepared vide Ex. P-4. Plain and blood stained soil were recovered from the spot vide Ex. P-5. Stick was recovered from the spot vide Ex. P-6. Sealed ,^^^^.; :£:yb^" ~"^%- ^•'^«^. (Q ^.. articles were sent for chemical examination vide Ex. P- 12. Dead body was sent for autopsy to Community Health Center, Bishrampur vide Ex. P-8. PW8 Dr. K.K. Tamrakar conducted autopsy vide Ex. P-13 and found following injuries:- (i) Contusion over forehead just about right eyebrow of 5 x 3 c.m. (ii) Contusion over right mandible area of 2x1 c.m. (iii) Contusion of25x3x3c.m.on left forearm, wrist and hand. (iv) Fracture of radial ulna bone was also found. (v) Contusion of 10 x 5 x 2 c.m. over right hand. (vi) Contusion over right forearm of 5 x 3 x 2 c.m. (vii) Multiple contusions of2x 1 x 1/2 c.m. to lOx 1 x2 c.m. over back. (viii) Four contusions of 5 x 1 x y2 c.m., 4x 1 x V2 c.m., 3 x 1 x V2 c.m. & 2V2 x 1 x 1/<2 c.m. over right buttock. (ix) Contusion and lacerated wound of 10 x 8 x 4 c.m. &4x 1 x 1 c.m. over left leg. (x) Tibia and fibula bone was found fractured. (xi) Lacerated wound of2x 1 x 1/2 c.m. over right leg. (xii) Contusion of5x 2 x 1 c.m. over back of the head. .^^y^: y^^^' 1 '^^ / ^ ^" (xiii) Right 4th, 5th & 6th rib was found fractured and blood was found in the thoracic cavity. (xiv) Contusion found over right lung of 10 x 8 x 3 c.m. v (xv) Contusion and lacerated wound over left lung of 10 x 8 x 4 c.m. Mode of death was shock and death was homicidal in nature. 4. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure,1973 (in short 'the Code'). After completion of the investigation charge sheet was filed before the Additional Chief T Judicial Magistrate, Surajpur who in turn committed the case to the Court of Sessiohs, Surajpur, District Sarguja from where learned 6th Additional Sessions Judge, Surajpur, District Sarguja received the case on transfer for trial. 5. In order to prove the guilt of the appellant/accused prosecution examined as many as 8 witnesses. Accused T was examined under Section 313 of the Code where he denied the circumstances appearing against him, innocency and false implication is claimed. 6. After affording an opportunity of hearing to the parties learned 6th Additional Sessions Judge, Surajpur, District Sarguja has convicted and sentenced the appellant as aforementioned. ^iSiiiiliS^iyWiW 9. 10. Shri Abhay Tiwari, learned counsel for the appellant and Shri Ashish Shukla, G.A. for the State/respondent are heard. Judgment impugned and record of Court below perused. Learned counsel for the appellant vehemently argued that in the present case, as per evidence of prosecution, appellant was present in his house along with his wife. ? He had consumed liquor, on that day he assaulted by stick to his wife without any cause and has caused multiple injuries, this shows that appellant was under intoxicating condition and was not able to knew the good and bad and result of his act. He has not caused any injury with intent to murder of his wife therefore, if the case of prosecution is considered as a gospel truth T then even the act of appellant does not travel beyond the scope of under Section 304 Part-I of the Indian Penal Code and present appellant has been sufficiently sentenced for the aforesaid offence. Learned counsel for the appellant further argued that evidence of prosecution witnesses does not inspire confidence, trustworthy and are safe to rely. T On the other hand, learned counsel for the respondent/State opposed the appeal and submits that conviction of the appellant is based on evidence of eyewitnesses PW1 Muluk Dhari @ Madrasi Panilka, ^iSiBISSgBSSS VSiWSIiSSSSSS3SSiSiiS^S^^SSSSSS9^S/^^S^S^S^SSSi^^ ^SiMi^siiSiSSiis^^^^^^^ ^-' PW2 Gendadas Manikpuri, PW3 Harinarayan Gond, who has lodged the First InformatiQn Report, PW4 Tilasobai, mother of the appellant, PW5 Kishun Ram & T PW6 Vishwanath Gond. Evidence of aforesaid witnesses inspire confidence trustworthy and are safe to rely. Considering the multiple injures and mercilessly assault made by the appellant only inference would be possible that appellant has committed brutal murder of his wife. 11. In order to appreciate the argument advanced on behalf T of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a result of multiple fatal injuries of Indrasobai has not been substantially disputed on behalf of the appellant on the ofher hand, otherwise also established by the evidence of PW8 Dr. K.K. Tamarakar and autopsy report Ex. P- r 13 which reveal that as many as more than 25 injuries were found over the body of deceased including fracture of radial ulna & tibia and fibula bone, contusion and lacerated wound on right and left lungs. Mode of death was shock and death was homicidal in nature. 13. As regard the complicity of the appellant in crime in question, conviction of the appellant is substantially y based on the evidence of aforesaid eyewitnesses. As per evidence of PW1 Muluk Dhari @ Madrasi Panilka, PW2 Gendadas Manikpuri, PW3 Harinarayan Gond, who has lodged the First Information Report, PW4 Tilasobai, mother of the appellant, PW5 Kishun Ram & PW6 Vishwanath Gond, at about 9:00 P.M. they heard the sound and reached to the house of the appellaiit where he was repeatedly assault to his wife by stick in his v courtyard. They tried to intervene but it was not possible them anyhow they caught hold the appellant. PW3 Harinarayan Gond went to the Police Station and lodged First Information Report Ex. P-3. 14. Defence has cross-examined these witnesses but has not been able to illicit in their cross-examination to discredit their testimony relating to repeat assault ' made by the appellant to his wife. As per First Information Report Ex. P-3, at the time of incident appellant had consumed liquor but no witness has said that he was under intoxication or any effect of liquor. He has caused more than 20-25 injuries by stick and caused fracture of 7 bones. The act of appellant clearly reveals that he has mercilessly assaulted his wife; this is not a case of causal assault. 15. After appreciating the evidence available on record learned 6th Additional Sessions Judge, Surajpur, District Sarguja has convicted the appellant under •.^^n^:'»,?3^fle^Bg.^@»M^^ 16; Sectiori 302 pf the Ind^ culpable |ioim^^ jEMdence ^ drawing arl^^^^^^^ i^ rnultiple ii^uries ^ resulting^ m olteeit C)nIlbe^Eitfofit^ act. In these^ cirGum&t^ possi^le th causediiiulrderofhis^ 1S }3QSe^^^^^^ sustainafoleijmderthel^ QiiJclo^e ^anAt^ illegali^l i^^^^^j^ interferen^. Sonseq^ently, erum rnerits aiid^sameN Uable^^^^^ 'disrriissed.i:^<.'':'.''':^ Sd/- T.P.Sharma Judge Sd/- R.L. Jhanwar Judge ^ ^' ^si