,y y HIGH CQURT OF CHHATnSGARH, BILAJWUR 'l,, Crlmuaal Appeal No. 220/2004 APPBLLAHT (InJiail) VERSUS Laxnu Lal Gaheer, s/o Nirpati Lal Gahecr, Age 34 years, R/o PoUce Traiaiag School, Mana Camp, Raipur (CG), Pennanent R/o Rajpur, P.S. Basna, District- Mahasamund (CG) RBSPONDEIIT State of Clihattisgarh, Through Station Officer, Police Statk>n- Mana Camp, Mana, Raipur (CG) CMMinAL APPBAL UNDBR SBCTION 374 (21 OP THB CSODB OF CRIMINAL PROCEOURE Appearaace: Ms. Sareena Khan, counsel fbr fhe appeflaat Shri D.K. Gwalre, Goveraiaent Advocate forthe State. Division Bench:- Hon'ble ShtiT.P^Shanna & Hoa'ble Sliri R.L.Jhanww.JJ Per T.P.Sharma, J. ORAL JUDGMEMT (19.01,2010) 1. Challenge ia this appeal is to the judgmcnt of conviction and order of sentence dated 6.2.2004, passed by the Sixfh Addidonal Scssions Judge, Raipur (C.G.) m Scssions Trial No. 332/2002, whereby and whereunder fhe learaed Additional Sessioas Judge after boldiag the appdllaat guilly for comxnission of causmg hoiiucidal deafh, amouutuig to murdcr of his wife - Labho Bai and attempt to commit mitrder of his 4 months child (sov^, convfcted the appeUant uiider Sections 302 and 307 of the IPC and sentenced to uadergo iiuprisoitment for Mfe and to pay a fine of ^ ^•v-sj> .f'..«Mi,, -^ |^°li&EMJJ 'l::i'. ^E^y' '"-ta&^ Rs.5000/-, ia default ofpayment offiae to further undeigo R.I. fer 5 months, and R.I, for 7 years and to pay a fine of Rs.2000/-, iu default of payiaent of fine to further uadergo R.I. for 2 months respectively. 2. The judgment is chaltenged oa the ground that without any credible and clinchmg evidence, the Court below has convkrtcd and sentenced the appeBant as aforeiuentioned and thereby committed Ulegality. •i.i 3. F'rosccution case in brief is fhat on fhe fateful day of 2.5.2002, at about 5.00 p.m., Pramod Singh (PW-5), Smt Jyoti Dhruv (PW-7), ne^bboitFers of the appellant were present in fheir house. The wiudow of fhe house of tihie appeltant was opened and his wife deceased- Labho Bai was tyiag m the housc. The house was closed fi»miuside. They laiocked the door and tned to open it, but the door coixld not be opened aad fiiiaUy they brote fhe door and entered inside the house. They saw that wife offhe appeUant was lying on fhe floor. Batfaroom was ctosed and appcUant •was present iaside along with his 4-5 months child (son). The witaesses opened the door of fhe batlirooin. The appeUant also tried to kill his 4-5 nionths child. Wife of the appeUant tiarrated the incident by signs and gestures and told that the appeUant has admitiistered coercive poison, which she has oinltted iasidc the house and the appeUant is inside the bafhrooin. Finalty, the witnesses took fhe wife aad son of the appcBant to ttie hospital aad lodged First iDformation Report vide Ex.P/18. Duriag ftie course of treatment, Labho Bai (since deceased) was cxamined by Dr. D.K.Jha (PW-16) vlde Ex. P/14. Her condition was not normaL She was admitted for further treatiaent in fhe hospitaL On 4.5.2002, she died. The matter was intuuated to PoUcc. Merg intimation was recorded vide Ex.P/24 aad Ex. P/25. Afler summoDiag the witaesses vide Ex.P/15,inqucst over fhc dead body ofthe deceascd was prepared vide Ea. P/16. The dead body was sent for autopsy to Medical CoUege Hospital, Raipur vide Ex. \ P/ 10-A. Autopsy was conducted by a team of 10 doctors. Dr. Sanjay Dadu (PW-13) conducted autopsy vide Ex. P/10. He reported fhat mternal oigans were congested and the death was due to cardio respiratoiy falture as a residt ofcoercive poisoiung. Written report was lodgcd vide Ex. P/l. The accused/appeUant was taken iato custody. He made disclosure. His ineinoranduin is Ex. P/3. Towel was seized yide Bx. P/2 and key offhe lock was seized vide Ex. P/4 at fh.e iri^tance ofthe appeUaat. One bottte of acid, blouse stained with oriiit, dry otiut after scratetung Scom. the floor, brokeu rod of the wiudow aud one lock, one sari, one petticoat and a towel were seizcd fcom. fhe spot vidc Ex.P/5 aad Ex. P/6. One plastic buckct, pfflow cover and bed shectwas also recovered firoin the spot. Spot map was prepared vide Ex. P/9. Accused was also exaiaiaed by Dr. S.K. Agrawal (PW-19) vide Ex. P/17, He found 3 superficial abrasions. Patwari prepared fhe tnap vide Ex, P/13. Acid bottle was seized vide EX.P/ 19. Scized articles were sent for chemical anatysis vide Ex.P/21 and Ex.P/22. Stateinents of the witaesses were iccorded under Section 161 of fh.e Code of Criminal Procedure, 1973. 4. After coiapletion of the mvestigation, chai^e sheet was fited before the Chief Judicial M^istrate, Raipur, wfao in tum, committed the case to fhe Court of Sessions, Raipur, fl»iawhere ttie learaed 6th Additional Sessions Judge, Raipur received the case on transfer for trial. S. In order to prove the guilt of the accused/appeUaat, fhe prosecution has examined as naany as 22 witaesscs. The accused was examined under Section 313 of fhe Code of Code of Crimiaal Procedure, iu which, he denied tfae circumstaaces appearmg agamst hiin, pleaded itinocence aud false iiaplication. ^' 6. After afFording fhe opportunily ofheanaig to fhe parties, tbe ^,, ' ' • leamed Additional Sessions Judge has convicted and sentenced the appeBant in thc aforesaid iiianner. 7. We have heard leamed counsel for the parties at length aad have perused the judgmeht and record ofthe Court belcw. 8. Lcaraed counsel for the appeUaat vehemently argued that such conviction is based on ttie cireuinstaatial evidence, which is ^ not sufficient to convict fhe appellaat for cominission offhe ofifence under Sections 302 and 307 of the IPC. He submitted that the appeUant has not adtiunistered the poison to liis wife aad he has not tried to IdU his 4 inonths cluld. Hc was not present at the tune of tacident. Deceased- Labho Bai herselfhas consumed fhe poison with intent to commit suicide aad when fhe appeUaat tried to save her, he also received injuries. 9. On the other haad, leamed counsel for the State opposed fhese arguruents aad stated that the appellaat was piesent iaside fhe house whea fhe incident took place. Hc has adiiunistered thc poison to his wife wifh a view to commit her naurder and also tried to kffl his 4 monfhs child and he was caught red haaded in the house after breaking the wiudow. Leamed couasel further submitted that the evidence adduced ou b&half of the prosecutmn is sufficient to convict the appeUant iiader Sectious 302 and 307 of the IPC. 10, In oider to appreciate the arguiaents advanced on behalfof the parties, we have exainined the evidence adduced on behatf of fhe prosecution. 11. In the preseut case, deafh ofthe dcceased is abnormal as a result of coercive pouorung aad it has not been substantiaUy disputed by the appeBant. It is established by the evideace of Dr. \ - :9 D.K. Jha (PW-16), Dr. Sanjay Dadu (PW-13), medical report Ex.P/14, autopsy repqrt Ex. P/ 10, which revealed that the deafh of the deceased was as a result ofcoercive poisoniag. 12. As regards compUcity of the appeUant in crime in questioa is concemed, Smt. Jyoti Dhruv (PW-7) has deposed ia her evideace that oa the date of incident, at about 3.30 p.m., house of the appellant was closed froia iuside and the wiadow was opeaed. Wife of the deceased was ia resttess condition iaside fhe house. They told for opening the d'obr, but uobody opened the door then they removed fhe rod offfae wiadow aad one persoa entered into the house aad opened the door. C.D.I. also entered iuto the housc of fhe appeUaat The appeUaut was iaside thc bafhrooia atoag wifh his smaU child. WiFe of fhe appellant told them by s^ns aad gestures that fhe appeUant has administered acid to her and also tied her hands aad haira of the head. She has ODaitted insMe the house. Inspector- Santram Mahilai^; (PW-l) has also corroborated ttie evidence of Smt. Jyoti Dhruv (PW-7) aad deposed fhat fhe bathrooia was ctosed from iaside. They opened the door of tfae bathroom. The appeUaat was mside wifh his 4 months chikl, to whoin he had put inside fhe bucket contaiuiag water. They sent wife and son (cUld) ofthe appeBant to the hospital and fiaatly they were sent for further treatment to Medical CoUege Hospital, Raipitr. They also mtiinated Police vide Ex. P/l. Pramod Singh (PW-5), Mahesh Salam (PW-6), who entered uito the house of the appeUaat after xienioving fhe rod of fhe wiudow aad Siat. Janiuna Ral (PW-9), have also corroborated the evidence ofSmt. Jyoti Dhruv (PW-7), Chovaram (PW-11) and Tikaram (PW-12). 13. Defence has cross exajmined Siat Jyoti Dhruv (PW-7) ia detailed, ia which, she has speciScally deposed that she chaaged fhe clofhes of wife of the appellant, at that tune, she was ini •^- ,. 1J~. '^ conscious condition. She has demed the suggestion that she has seen the iacideat Sa&train Mahilaag (PW-1) has also been cross examined and ftie defence has not toeen abk to elicit auyfhing in his cross examinatiou to discredit his testiinony. Defence has also cross examiaed Pramod Singh (PW-5), Mahesh Salam (PW-6), Smt. Jamuna Rai (PW-9), Chovaram (PW-ll) and Tikaram (PW-12) but, fhe prosecution has not been able to elicit anyfhmg in their detailed cross examiaation. to discredit their testimoay relating to fhe facts fhat the house of fhe appeUaat was closcd finm inside, accused was not present iaside the bathrooni aloiig wifli the child, his wife was not ia resfless conditiou aad she has not onutted inside fhe room and also not narrated the incident by aiyas and gestures. Thus, unchatleuged facts and circumstaaces are sufi&cient for drawing an mfereuce ftiat that appeUaat has administered the acid coercive poison to fhe deceased i.e. his wife- Labho Bai aad as a result of such poisoa, she dfed. Bvidence of Santram Malulaag (PW-l) also revealed that the appellant had put his 4-5 moaths chiU in the bucket contamiug water. The same is sufBcient for drawiug aa iaference that he has atteiupted to coaunit murder ofliis 4-5 months cluld. 14. After appreciating fhe evidence avaUable on record, the learaed Coiu-t below has convicted fhe appeBaat imder Scctions 302 aad 307 of the IPC. The conviction of the appeUant is oa cUnchiag and credible evidence, sustainable zinder law. 15. As regards the question of inotive, luotive onfy aids in crimiaaUty, in case of direct evideace it toscs its importance. MotiLve cau be inferred on the basis ofway and fhe maaner, in which, fhe offence has been comjinitted. sunita 16. The appeUaat has administered coerci»e poison to hus wife aud fhereby coiumitted homicidal death of his wife aad he tried to ^, atteinpt niurder ofhis 4-5 inonths chiU (son). 17. The Court below has awarded a niiniTniirn sentence under Section 302 of the IPC aad R.I. for 7 years aad to pay a fiae of Rs.2000/- undcr Secfioa 307 of the IPC. The sentence is adequate. 18. For the foregom.g rca&ons, we do not find any illegalily or inflrmily in fhe judgcaent impugaed, p^sed by thc trial Court. The appeal is Uable to be dismlssed and te hereby dismissed accordin^gly, R.L. Jhanwar TP.Shanna Judge i-^