c c. HiGH COURT OF CHHATTiSGARH : BILASPUR DIVSSION BENCH: HON'BLE SHRIT.P.SHARMA AND HON'BLE SHRI R.LJHANWAR. JJ. Criminal apDeal No.803 of 2007 APPELLANT (in iailll RESPONDENT Futha @ Nandlal Majhwar, S/o Bandhan/aged 23 years, Occupation - Labour, resident of viilage Puta, O.P. Morga, P.S. Bango, Dist. Korba (C.G.) VERSUS State of Chhattisgarh, Through Police Station Prem Nagar, Dist. Surguja (C.G.) CRIMINAL APPEAL U/S 374 (2) OF CR.P.C. Appearance: Shri Vivek Shrivastava, counsei for the appetlant. Shri R. R. Sinha, P.L. for the State. ORAL JUDGMENT (Passedon 04.04.2011) PerT. P. Sharma, J. Challenge in this appeal is to the judgment of convlctlon and order of sentence dated 24.07.2007 passed by the 2nd Additional Sessions Judge (F.T.C.) Surajpur in S.T.No.437/2006 whereby and whereunder after hoiding the appellant guitty for commission of cuipabie homicide amounting to murder of his wife Smt. Somari, the Court belovi/ convjcted the appeilant under Sectlon 302 of the 1<P.C. and sentenced him to imprisonment for iife with fine of Rs.200 and in defauit to payment of fine, the appeliant has to further undergo five days rigorous imprisonment 2. The conviction is impugned on the ground that without an iota of evidence on record, the Court beiow convicted and sentenced the appeliant as aforementioned and thereby committed iliegaiifr^. 3. As per case of the prosecution, on fatefui day of 18<09<2006 at about 2.00 p.m. while the deceased Smt. Somari was present in her fieid aiong with P.W.2 Ku. Sukhwari and P.W.10 Tubo Bai, the appeliant assaulted his wife Smt Somari with axe over her neck and caused her instantaneous death. Both the witness intimated the viiiagers and P.W.3 fA 1l.^..:.:.J. c Pritram went to potice station and lodged F.I.R. vide Ex.P.2 and merg jntimatEon vide Ex.P.1. InvestigatEng Offlcer left for scene of occurrence and after summoning the witnesses vide Ex.P.8, inquest over the dead body was prepared vide Ex.P.9. Spot map was prepared vide Ex.P.3. BEoodstained and piain soiis were recovered vide Ex.P.7. Dead body was sent for autopsy to CommunEty Heaith Center, Premnagar vide Ex.P.12. Dr. S.K.Gupta P.W.15 conducted autopsy vide Ex.P.21 and found ne indsed wound of 6 cm. x 2.5 cm. x 8 cm. over neck. Cause of death was due to excessive haemmorhage and death was homicida! in nature. During the course of investigation, the appeiiant was taken into custody, he made disciosure statement of axe vide Ex.P.4 and the same was recovered vide Ex.P.5. Biood stained cioth of appetiant was sejzed vide Ex.P.6. Sealed cioths of the deceased \^as recovered vide Ex.P.11 . 4. Statements of witnesses under Section 1S1 of the Code of Crimina! Procedure (for short "the Code") were recorded. Afeer completion of investigation, charge sheet was filed before the Court of Additionai Chief Judiclal Magistrate, Surajpur, who in turn committed the case to the Court of Sesslons, Ambikapur. The iearned Additional Sessions Judge has received the case on transfer for its triai. 5. Jn order to prove the guilt ofthe appeiiant, prosecution examined as many as 15 witnesses. Appeliant was examined under Section 313 of the Code where he denied the circumstances appearing against him and pieaded his innocence and faise impfEcation. The appeiiant aiso took defence and examined one Tomendar Singh as D.W.1, who has deposed that on 18.09.2006 the present appeilant was busy jn last rituais of his eider mother and the appeiEant was present there from 10.00 A.IVI. tili 10.00 P.M. However, his evidence does not inspire confidence and trustworthy on the ground that if the appeliant was busy En the aforesald death ceremony from 10.00 A.M. tEII 10.00 P.M., then in the same viiiage where his wife was murdered at 2.00 P.M. and the report was Eodged on the same day at 6.00 P.M. The verslon of defence witness that even after comlng to know about the death of his wife theappeiiant was busy in the iast rites of his eider mother appears to be highiy improbabie and therefore, the cannot be believed bythis Court. •^^ -^'.^.-^ ""^ ^ _.^-:'^^ '^SS^ .1 ^ ' ... "9 E 't.. .^.. .^' .^ ^ ' ''••.'"•-^.^' .^ ^ c 6. After affording opportunity of hearing to the parties, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 7. Shri Vivek Shrivastava, jearned counsel for the appeiiant and Shri R.R.Sinha, learned counsel for the State heard. Judgment impugned and record ofthe Court below perused. 8. Learned counse! for the appeliant vehementiy argued that conviction is substantially based on child witnesses P.W.2 Sukhwari and P.W.10 Tubo, whose evidence does not inspire confidence and trustworthy. They are tutored witnesses and their evldence Is ful! of djscrepancies and is not sufficient for definite conclusion that oniy the appeliant has caused murder of his wife. 9. On the other hand, Jearned counse) for the State opposed the submissions and submitted that the evidence of aforesaid witnesses j.e. P.W.2 SukhwarE and P.W.10 Tubo is sufficlent for drawing definite conciusion that onjy the appeliant has caused murder of his wife. 10. In order to appreciate the arguments advanced on behajf of the parties, we have perused the evidence adduced on behaif of the prosecutlon. in the present case, homicidai death as a resuit of fatal injury found over the neck of the deceased has not been substantiaiiy disputed by the appellant but on the other hand estebfished by the evidence of P.W.15 Dr. S.K. Gupta and autopsy report Ex.P.21 and death was homIcidaE in nature. 11. As regards complicity of the appeliant jn crime in question, the conviction of the appeiiant is substantiaJly based on the evidence of P.W.2 Ku. Sukwari, aged 7 years and P.W.10 Tubo Bal, aged 15 years. Both are chiid witnesses. As per evidence of P.W.2 Sukwari, she was present aiong wlth her sister Smt. Somari at field. The appeilant assauited her sister Smt. Somari by axe over her neck and caused her jnstantaneous death. In her cross-examination, she has admitted that her sister feil down on the floor and she has notseen the actual assauit. Again she was examined by the prosecution in which she has deposed that she has seen the incident but again in para 6 when she was re-examined by the defence, she has deposed again that she has not seen the actuaf assault. ..^ss^ ^\ ' ^ '^ ^^ Ife.^,^ ^- P.W.10 Tubo Bai is another witness who was also present at the time incident ahd has deposed that she has seen the incident and the appellant caused injury over the neckofSmt. Somari.In hercross-examination at para 5, she has admitted that she was informed by Pandri but in para 2 and 4, she has specifically deposed that she has seen the incident and the appellant assaulted Smt. Somari. In her detailed cross-examination and re-examination, she has explained that she has seen the incident and the appellant assaulted Smt. Somari but on account of repeated questions put by defence counsel she has deposed that she has not seen the incident. Presence of these witnesses and the fact that she has seen the incident finds support from F.I.R. Ex.P.2, which was promptly lodged. The evidence of P.W.10 Tubo Bai clearly revealed that she was present on the spot and has seen the appellant causing injury to Smt. Somari. The evidence of P.W.10 Tubo Bai alone is suffjcient for drawing definite conciusion that appellant has caused homiddal death ofSmt. SomarE. 12. As regards question of motive, in case of direct evidence.motive loses its importance, even otherwiss, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances, In the present case, the appellant has caused fatal injury over the neck of the deceased byaxe while his wife wasin helpless position, she was not holding any weapon. There was no occasion for causing such injury. Present appellant was under obiigation to protect his wife Smt. Somari but instead of protecting her, he has caused fatal injury resulting into instantaneous death, which shows the grave intention ofthe appellantcausing death ofdeceased Smt. Somari. 13. After appredating the evidence available on record, the learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 14. On close scrutiny of the evidence, we do not find any iilegality in the impugned judgmentrequiring interference bytheCourt. 15. Consequentiy, the appeal being devoid of merit, is liable to be and js herebydismissed. \ Sd/- I l R-L.Jhanwar T.P. Sharma | \ Judge Judge ^-^.