HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram:Hon’ble Shri.T.P. Sharma & Hon’bie Shri R.N. Chandrakar, JJ. Criminal Apgal No. 667 of 2007 Shivdutt Ransure, s/o. Anna Ransure, aged about 34 years‘ r/o. 16 ' Kholi, Stationpara, Rajnandgaon, Tahsil & District y Rajnandgaon (CG). V‘. State of Chhattisgarh through District Magistrate, Rajnandgaon J; (Chhattisgarh). ‘ 'I Appeilant Vs. Respondent (Criminai Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. P.K.C. Tiwari, Senior Advocate with Mr. Shashi Bhushan counsel for the appeilant. Mr. J.A. Lohani, Panel Lawyer for the State. JUDGMENT (Deiivered on 15—12-201 1) Per T.P. Sharma, J. 1. Challenge in this appeai is to the judgment of conviction and order of sentence dated 26—7-2007 passed by Sessions Judge, Rajnandgaon, in Sessions Trial No.121 of 2006, whereby and whereunder learned Sessions Judge after holding the appellant guilty for commission homicide amounting to murder of Virendra Jhangde, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay fine of Rs.500/—, in default of payment of fine to further undergo SI for three months. - Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted & sentenced the appellant as aforementioned and thereby committed illegality. As per case’of prosecution, ‘on the fateful day of 19-10-2006 between 10 — 11 a.m., at Stationpara, Rajnandgaon, appellant assaulted Virendra Jhangde (since deceased) by a stone and threw him in drain. PW/2 Ku. Khushbu witnessed the incident, rushed to the house of the deceased and informed her sister Smt. Seema Jhangde (PW/1) about the incident, who immediately rushed to the spot and saw the appellant standing with stone near her husband who was lying on the ground stained with blood. She took her husband to the house. There was bleeding from the head of her husband and he became unconscious, then she took him to District Hospital, Rajnandgaon and lodged Dehati Nalishi vide Ex.P/1. injured Virendra‘Jhangde was examined by Dr. B.L. Kumre (PW/9) who found that injured was serious and unconscious & smell of alcohol was coming from breath and noticed the injuries; i) lacerated wound of 1/2 x 1/2 inch over right parietal region; ii) lacerated wound of 1x 1/2 x 1/2 inch thickness of occipital region of scalp; iii) lacerated wound of 1x 1/2 x scalp mid deep and there was excessive bleeding from the injuries. He was immediately shifted to Surgical Ward. He was treated at District Hospital , Rajnandgaon, thereafter he was shifted to Jawaharlal Nehru Hospital, Bhilai, where he was treated by Dr. Subodh Hiran (PW/1 0) vide EX.P/13 relating to neurological problem at the time of seriousness. During the course of treatment injured Virendra Jhangde died on 20-10—2006 at 6.45 a.m. Death was intimated by the hospital authorities to Police Station, Sector 6, Bhilai vide EXP/23. Merg was recorded vide EXP/22. After summoning the witnesses vide Ex.P/14, inquest over the dead body was prepared vide Ex.P/15. Dead body of deceased was sent to District Hospital vide Ex.P/17 where Dr. A.K. Soni (PW/16) conducted autopsy vide EXP/24 and found the following injuries: i) Stitched wound of 3cm on midline of parietal region of scalp; ii) Bruise 110m X 9 cm on right parito temporal region of scalp; iii) Stitched wound of 3 cm on left side of occipital region of scalp; iv) Stitched wound of 2 cm on right parietal region of scalp; v) Abrasion 2cm x 1 cm on right side of the forehead; vi) Abrasion 1cm x 1/2 cm on nose. vii) Abrasion 1/2 cm x 1/2 cm on left wrist; viii) Fracture of both parietal and temporal bone of 26cm in leng’th. The Doctor has opined that mode of death was coma. Finally, furst information report was registered vide EXP/16, spot map was prepared vide Ex.P/2, blood stained soil and plain soil from the spot were seized vide EXP/3. During the course of investigation, appeliant was taken into custody and he made a disclosure statement of stone vide Ex.P/4 and the same was seized at the instance of the appellant vide Ex.P/5, blood stained Chadar was seized from Brijlal vide Ex.P/6, merg was recorded vide Ex.P/7, FIR was lodged vide EIP/S and clothes of appellant were seized 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, Rajnandgaon, who in turn committed the case to the Court of Sessions Judge, Rajnandgaon who framed the charge under Section 302 of the IPC against the appellant. ln order to prove the guilt of the appellant, prosecution examined as many as sixteen 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 claimed. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard learned counsel for the parties, perused the I judgment impugned and record of the trial court. Learned Senior Advocate appearing on behalf of the appeHant vehemently argued that conviction of the appellant is substantially based on the evidence of the alleged solitary eye-witness Ku. Khushbu (PW/2) aged about 12 years but her evidence does not inspire confidence and trustworthy and her evidence is full of contradictions, omissions and exaggerations and it does not corroborate from independent sources. As per her evidence, she witnessed the incident from hand—pump where she was washing her clothes and she is a resident of same vicinity but she was not in u a position to say that where incident took place i.e., in front of whose house the incident took place. Learned counsel further submits that the alleged hand pump does not find place in spot map (EXP/2). As per evidence of (PW/4) Roshan Singh and (PW/6) Mohan Das, place of incident was not visible from hand— pump. These evidences reveal that PW/2 Ku. Khushbu had not witnessed the incident. in absence of any corroboration from independent sources, her evidence is not safe to rely for conviction of the appellant. He further submits that there is clear inconsistency between ocular and medical evidence and even as per medical evidence, initially injured was examined by Dr. B.L. Kumre (PW/9), who has noticed three lacerated wounds over his head and it appears that all the injuries were treated and stitched which have been seen by second Dr.‘ .Subodh Hiran (PW/10) on 19-10—2006 but he has not noticed any contusion of considerable Vsize i.e., Bruise 11cm x 9 cm on right parito temporal region of scalp which was not trifle or negligible injury. After death of _ t‘: W‘”"’\ V Virendra Jhangde, autopsy was conducted by’ Dr. A.K. Soni (PW/16) who noticed the aforesaid three stitched wounds along with three abrasions and small incised wounds, which may be ignored and has also noticed injury No.2, Bruise 11cm x 9 cm on right parito temporal region of scalp i.e;, considerable size which has not been noticed by two previous Doctors who attended and treated the injured for the first time. lt shows that at the time of causing injuries, injury No.2 Bruise 11cm x 9 cm on right parito temporal region of scalp, was not available or the person who has assaulted the deceased, has not caused injury No.2 which was fatal and grievous injury as mentioned in Ex.P/24, at the time of incident. Except injury No.2, other injuries sustained by the deceased were simple in nature and having coupled with fracture o'f both parietal and temporal bone of 26cm in length. Learned counsel further submits that the person who has caused injuries to deceased, has not caused fatal injury found over the head and parito-temporal region. Therefore, the person, who caused injuries to deceased at the time of incident, is not liable for conviction under Section 302 of the IPC. Thus, the evidence of PW/2 Ku. Khushbu does not inspire confidence and trustworthy. Learned Sr. counsel for the appellant in support of his arguments, has placed reliance in the matter of Dauram slo. Faguram Vs. State of Chhattisgarh decided by ,this Court on 8-3-2011 in Criminal Appeal No. 622 of 2006 in which this court held that in case of shaky evidence, further corroboration from independent sources is necessary. 11. 12. On the other hand, learned State counsel opposed the appeal and submitted that prosecution proved its case beyond all shadow of doubt and PW/2 Ku. Khushbu, child witness has proved the case of prosecution and her evidence inspires confidence and trustworthy. She has categorically deposed that appellant has caused injuries by brick, stone and stick. Her evidence finds corroboration from the evidence of PW/1 Smt. Seemadhangde and further corroboration from Dehati Nalisi vide Ex.P/1. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 13. ln order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf of the prosecution. 14. In the present case, abnormal death of Virendra Jhandge as a result of fatal injuriesfound over head of the deceased, has not been disputed on behalf of the appellant. Even otherwise, it is also established by the evidence of Dr. B.L. Kumre (PW/9), Dr. Subodh Hiran (PW/10) and Dr. A.K. Soni (PW/16) and autopsy report vide EXP/24 that death of deceased was abnormal as a result of fatal injuries. 15. As regards complicity of the appellant in crime in question, conviction of the appellant is based on the evidence of PW/2 Ku. Khushbu, alleged solitary eye—witness aged about 12 years at the time of her examination. After satisfying that she is in a position to answer the questions rationally, the court below has recorded her evidence. As per her evidence, at the time of incident appeliant was assauiting the deceased, firstly he threw the deceased in a drain, thereafter assauited him by brick and stone and when the deceased tried to save himself, then the appellant assaulted the deceased by stick. She rushed to the house of the deceased and informed about the incident to her aunt (mousi) i.e., PW/1 Smt. Seema Jhangde. Thereafter, she went to her house and informed her mother about the incident. On the basis of her evidence, spot map was prepared vide Ex.P/2. 16. As per evidence of PW/1 Smt. Seema Jhangde, she was informed about the incident by PW/2 Ku. Khushbu i.e., daughter of her sister. When she asked the appellant about the cause of incident, appellant told her that he would beat him again. As per her evidence, she took her husband to District Hospital, Rajnandgaon where he was examined and thereafter he was shifted to Sector 9 Hospital, Bhilai where he died. Defence has cross—examined PW/2 Ku. Khushbu at length. There are some contradictions and omissions in her evidence and her statement (Ex.D/2) recorded under Section 161 of the Code. As per para ten of her evidence, initially police interrogated the appellant and Deepak i.e., real brother of PW/1 Smt. Seema Jhangde. As per para ten of her evidence, appellant and deceased had consumed liquor, but she has denied the suggestion that deceased himself fell down into drain because of intoxication. In para 11 of her evidence, she has deposed that she did not know Mohandas and she has not stated about Mohandas in Ex.D/2. PW/1 Smt. Seema Jhangde has ah admitted in paras 11 and 12 of her cross-examination that previously her husband was also beaten by some persons. She has admitted that the, appeiiant is her brother, may be distant relation. In para 12, she has further admitted that appellant advised her to bring the injured to hospital. She has further admitted that as requested by her appellant brought bandage to the injured. Initially as per her statement, when she reached the spot she saw the appellant with stone but in her evidence before court she has only admitted the presence of appellant near her husband stating that “1% W @r W Em W 1m at W W %, T6 sit? W’. As per evidence of PW/4 Roshan and PW/6 Mohandas, hand pump was not visible from the place of incident and the incident took place in front of the house of Mohandas. As per evidence of Roshan (PW/4), in para 5 of his evidence hand- pump was situated at lane No.2 and incident took place in front of the house of Mohandas (PW/4). PW/4 Roshan and PW/6 Mohandas have not supported the case of the prosecution and prosecution has declared them hostile. Evidence of these witnesses reveal that hand-pump is situated at lane No.2 and house of Mohandas (PW/4) is also situated beside lane No.2. Evidence of these witnesses show that they suppressed the truth relating to situation of hand-pump. Only on the ground that hand- pump was not mentioned in Ex.P/2, situation of hand-pump and evidence of PW/2 Ku. Khushbu cannot be discarded. Though there are contradictions and omissions in the evidence of PW/2 Ku. Khushbu but her evidence is corroborated by the evidence of PW/1 10 Smt. Seema Jhangde to the extent that appeilant was standing with stone near her husband and being asked appellant told her that he would again beat him.' This part i.e., relating to appellant, is relevant as subsequent conduct under Section 8 of the lndian Evidence Act. Evidence of PW/1 Smt. Seema Jhangde and PW/2 Ku. Khushbu inspires confidence and trustworthy to the extent that appellant has caused injuries to deceased Virendra Jhangde at the time of incident. 17. As regards homicidal death caused by the appellant and intention of the appellant to cause death are concerned, as per evidence of Dr. Kumre (PW/9) and Dr. Subodh Hiran (PW/10), they have noticed only three injuries which were lacerated/stitched wounds. As per evidence of Dr.A.K Soni (PW/16) and autopsy report (EXP/24), he noticed seven injuries; out of seven injuries injury No.2, 5, 6 and 7 were not previously noticed by other doctors. The injury No.2 was fatalwhereas injury Nos.5, 6 and 7 were simple in nature. Only on the ground that these injuries have not been noticed, evidence of Dr. Kumre (PW/9) and Dr. Subodh (PW/10) cannot be discarded. ln addition to three stitched wounds, Dr. A.K. Soni (PW/16) has noticed injury No.2 bruise 11cm x 9 cm on right parito temporal region of scalp coupled with fracture of both parietal and temporal bone of 26cm in length. As per para 5 of his evidence, injury No.2 was grievous infn‘ature. injury No.2 having dimension of 11cm x 9 cm coupled with fracture of both parietal and temporal bone of 26cm in length was not trifle, simple or negligible injury which can be ignored i.e., injury No.2 was the x 11 grievous injury having considerable dimension which has not been noticed by Dr. Kumre (PW/9) and Dr. Subodh (PW/10) at the time of examination. In the_ Iight of aforesaid inconsistency in the evidence of the aforesaid Doctors and contradictory statement/medical report, it is difficult to hold that injury No.2 was present at the time of incident which has been proved to befatal and sufficient for causing death of deceased. ln absence of any cogent evidence relating to such fatal injury, it is difficult to hold that present appellant has caused injury No.2 i.e., fatal injury. lnjury No.2 is also not an internal injury which can be inferred resulting injury or injury by reflection of other injuries found over head of the deceased. Prosecution was under obligation to prove the fact that the appellant has caused homicidal death with intent to cause the death of deceased. As per para 12 of the evidence of PW/1 Smt. Seema Jhangde, wife of deceased, present appellant is a person who advised her to bring the injured to hospital and he also provided bandage to the injured. lt further reveals that appellant has not caused any injury to the deceased with intent to cause, homicidal death. Evidence of PW/1 Smt. Seema Jhangde and PW/2 Ku. Khushbu can be taken into account to the extent that appellant has caused injuries other than injury No.2 as noticed in EXP/24. Injury Nos.1, 3 and 4 were having sufficient depth over head i.e., scalp depth which can be considered as grievous injury, .but not fatal. In these circumstances, appellant was liable for causing grievous hurt to the deceased and not for causing homicidal death with intent to cause his death. While convicting 2006. He be released forthwith, ;~rn sw- n). SHARMA Judge" if not required in any other case. sw— ;R.N. Chandrakar Judge '3 ‘