HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram:Hon’bie Sh‘ri T.P. Sharma & Hon’bie Shri R.N. Chandrakar, JJ. Criminal Aggeai No. 510 of 2007 Kushai Prasad, 46 years, s/o. Ramdutt Patel, r/o. village Birkoni, Police Station Janjgir, District Janjgir-Champa (CG). Aggellant (in jail) Vs. Respondent State of Chhattisgarh, through S.H.O., Police Station Janjgir, Distt. Janjgir—Champa (CG). (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. K.K. .Singh, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyer forthe State. JUDGMENT (Delivered on 21—1 1—201 1) Per T.P. Sharma J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 6-1-2004 passed by 2nd Additional Sessions Judge (FTC), Janjgir, in Sessions Trial No. 241/2003, whereby and whereunder learned 2”“ Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to murder of his sister-in-law Shail Kumari (wife of younger brother of appellant), convicted him under Section’302 of the IPC and sentenced him to undergo imprisonment for life. 2. Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, appellant, the elder brother of Kaushal who is husband of deceased Shail Kumari, was residing separately in the same premises on account of property dispute, at village Birkoni, PoIiCe Station Janjgir. On account of the dispute on 21-3- 2003 at about 7.30 a.m., appellant caused fatal injuries over hands of deceased Shail Kumari and chopped off her neck from trunk by causing repeated assaults by betel axe and thereafter went inside the room and closed the door from inside. PW/1 Atam Kunwar, mother of appellant and PW/8 Rajeswari were present on the spot and they have witnessed'the incident. PW/1 Atam Kunwar closed the door from outside. PW/3 Shantidas came to the spot ‘and after gathering information, he went to Police Station Janjgir and lodged merg vide Ex.P/1 and N ' FIR vide Ex.P/2. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/6, inquest over the dead body of deceased was prepared vide EX.P/7, blood stained soil and plain soil were seized from the spot vide Ex.P/14, sealed clothes of deceased were seized vide Ex.P/8, Patwari prepared spot map vide Ex.P/9. dead body was sent for autopsy to Government Hospital, Janjgir, vide Ex.P/4, where Dr. Ashutosh Mishra (PW/4) conducted autopsy vide Ex.P/5 and found the following injuries: i) Extensive incised wound present over the nape of neck and adjoining back at chest extending anteriorly upto the chin. Neck is cut through and thrOugh at the level of C6 — C7, internal organs were found cut. Incised wound 12 cm x 2.5 cm over neck; iii) Incised wound of 10 cm x 4 cm x 2.5 cm over left fore-arm; iv) Incised wound of 6 cm x 3 cm x 2.5 cm over right fore—arm and opined that mode of death was asphyxia and death was homicidal in nature. 5. During investigation, appellant was arrested vide Ex.P/3 and betel axe and lungi were seized vide Ex.P/13. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/18 and presence of blood over betel axe and lungi of the appellant was confirmed vide Ex.P/19. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Janjgir, who in turn committed the case to the Court of Sessions Judge, Bilaspur. Learned 2nd Additional Sessions Judge received the case on transfer for trial, who framed charge under Section 302 of the IPC against the appellant. In order to prove the guilt of the appellant, prosecution examined as many as 12 witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is ciaimed. 8. After affording opportunity of hearing to the parties, learned 2nd Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 9. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. : ”4 10. Mr. K.K. Singh, learned counsel for the appellant vehemently argued that although conviction is based on the evidence of PW/1 Atam Kunwar and Rajeshwari (PW/8), relative of the deceased who was having enmity with the appellant, there are omissions, contradictions and exaggerations in their statements and their evidence does not inspire confidence and trustworthy and same requires further corroboration from independent sources. Evidence of PW/1 Atam Kunwar reveals that virtually she has not seen the incident, but she has deposed only with a view to implicate the appellant on the ground of enmity; likewise, PW/8 Rajeshwari reveals that the evidence of child witness of ten years age, are not safe for conviction of the appellant and same requires further corroboration from independent sgurces. The evidence of this witness is also contradictory. In support of his arguments, g learned counsel for the appellant has placed reliance in the matter of Rambilas and others vs. State of M.P., reported, in AIR 1997 SC 3954, in which the Supreme Court has held that presence of ‘ , r eye—witnesses at place of occurrence is doubtful and when there is / r (r . . @ 3 inconsistency in the alleged ocular evidence and medical evidence, then conviction is not sustainable under law. 11. On the other hand, Mr. J.A.Lohani, Iearned Panel Lawyer on behalf of the State opposed the appeal and submitted that conviction is based on the evidence of eye—witnesses Atam Kunwar (PW/1) and Rajeshwari (PW/8) whose presence on the spot i.e., their house, was natural. There are no omissions and contradictions in their statements and evidence of the aforesaid eye-witnesses inspires confidence and trustworthy and same are safe to rely for conviction of the appellant. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 12. In order to appreciate the arguments advanced by Iearned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injuries found over the body of deceased Shail Kumari, has not been’w" disputed on behalf of the appellant. Even otherwise, it is also established by the evidence of Dr. Ashutosh Mishra (PW/4) and autopsy report vide Ex.P/4 that death of deceased was homicidal in nature. As regards the complicity of appellant in crime in question, conviction is based on the evidence of eye-witnesses Atam Kunwar (PW/1) and Rajeshwari (PW/8). As per evidence of Atam Kunwar (PW/1), at the time of incident she was present in her Wawwam x house and deceased was coming back from Kotha (cattle house) where cattle were kept, appellant assaulted the deceased by betel axe on her hands and when the deceased tried to run away, then the appellant assaulted her thrice by betel axe over neck, thereafter she fell down and died. Appellant entered into his room and ciosed the door from inside. This witness snatched “Maia” and closed the door from outside. Her evidence is substantially corroborated by the evidence of PW/8 Rajeshwari, ten years old child witness to whom the court examined after satisfying that this witness is able to answer the questions rationally. As per her evidence, she was sitting with her sister in the court-yard and appellant assaulted her mother thrice by betel axe. She has specifically deposed in her cross-examination that the appellant has caused fatal injuries over the neck of deceased Shail Kumari. She admitted that there was enmity between appellant and deceased. There are contradictions and omissions in her statement (Ex.D/1) recorded under Section 161 of the Cr.P.C., likewise there are some contradictions and omissions in the evidence of PW/8 Rajeshwari and her statement (Ex.D/3) ~recorded under Section 1‘61_ of the Cr.P.C but at the time of recording such evidence relating to contradictions and omissions, prosecution, defence and court have not read the statements (Ex.D/1 and D/2) recorded under Section 161 of the Gr.P.C. Even othen/vise, though there are some contradictions and omissions, the appellant was having enmity with witnesses and deceased Shail Kumari but he was residing in the same premises and the presence of PW/1 Atam Kunwar and PW/8 Rajeshwari at the time of incident on the spot was natural. They had witnessed the incident and their evidence is further corroborated by PW/3 Shanti Das, who came to the spot and found that the appeilant was inside the room and closed the door from inside. The evidence of the above witnesses is also corroborated by merg and first information report. There is inconsistency between number of assaults made on the neck 0f the deceased. As per medical report, virtually neck of the deceased was chopped off and the other injuries; tvvo incised wounds over neck and twoincised injuries over both hands which shows that about 4 assaults have been made by the appellant in the instant case despite a number of assaults made upon a particular part i.e., neck but only on the ground of discrepancy in number of injuries sustained by the deceased, evidence of these witnesses cannot be discarded. As held in the case of Rambilas (supra), there is no such discrepancy between ocular and medical evidence in the instant case. PW/1 Atam Kunwar and PW/8 Rajeshwari categofically supported the incident which finds corroboration from medical evidence. There is no doubt relating to w presence of appellant on the spot at the time of incident. Thus, the case law cited by learned counsel for the appellant is distinct from the x facts of the present case. 15. After appreciating the evidence available on record, learned 2”d ' Additional Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence of the Wmmm (E‘WM court below. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. M¥ ‘i?’:::,r‘ Sd/— F” " sd). 7 ‘ T.P Shanna [ RN.Chandrakar Judge i g. Jud8e Raju