^" %•• HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. Chandrakar, JJ. Appellant/ (In Jail) Respondent Criminal Appeal No. 307 of 2005 Sadhuram Bada, aged about 36 years, son of Shri Etva Bada, resident of village - Lamdad (Navamuda), Police Station Lailunga, Distt. Raigarh (Chhattisgarh) Versus State of Chhattisgarh Through : Police Station - Lailunga, Distt. Raigarh (Chhattisgarh) (CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. A.N. Bhakta, counsel for theappe!lant. Mr. D.K. Gwalre, Govt. Advocate for the State. fe ORALJUDGMENT (Passefi on 08 August, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 21.03.2005 passed by the IVth Additional Sessions Judge (FTC), Raigarh, in Sessions Trial No.147/2004, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicidal death of Nicolus Kindo and his wife Filsita (since deceased) amounting to murder and commission of intimidation convicted under Sections 302, 302, 506 (B) and 506 (B) ofthe I.P.C. and sentenced himto undergo imprisonment for tife, and to pay fine of Rs.100/-, R.l. for one year and to pay fine of Rs.100/-, in default of payment of fine to further undergo R.l. for 1 month for each default, respectively. ^p^' ^. " .... ^' ^'"^T'^f^--... l'. fe 6 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced theappellant as aforementioned and thereby committed illegality. 3. As per case of prosecution, on account of previous enmity regarding land dispute specially flowing of water into the land of present appellant, on fateful day of 05.10.2004 at about 11.00 am when unfortunate deceased Nicolus Kindo and his wife Filsita were reaping groundnuts in their field along with Rakesh Kindo (PW/2) and Jasinta Kindo (PW/5), son and daughter-in-law of deceased. Appellant went to the field, he was holding axe. Being asked by deceased Nicolus Kindo then appellant caused repeated blow by axe upon Nicolus Kindo and caused his death. He chased Rakesh (PW/2) but he managed to rush from the spot. Again appellant came and caused repeated blow by axe upon deceased's wife and caused her instantaneous death. Rakesh (PW/2) went to the police station and lodged F.1.R. vide Ex.P/15. Merg intimation was given vide Ex.P/13 and Ex.P/14. Investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/1, inquest over dead body of deceased Nicolus Kindo and Filsita were prepared vide Ex.P/3 and Ex.P/4. Spotmaps were prepared vide Ex.P/5, Ex.P/6 and Ex.P/7. Blood stained and plain soil were seized vide Ex.P/10 and Ex.P/1 1. Dead body of deceased Filsita was sent for autopsy to Govt. Hospital, Lailunga vide Ex.P/17-A. Dr. Raj Kumar Gupta (PW/9) conducted autopsy vide Ex.P/17 and found following injuries:- i) Incised wound of 8x2 cm in bone deep over face above left ear. ii) iii) IV) Incised wound of 8x4x4cm over right side of neck. Internal parts were cut. Incised wound of 7x2cm over left arm in bone deep. Incised wound of 7x2x3 cm over back. Mode of death was hemorrhagic shock and death was homicidal in nature. 4. Dead body of deceased Nicolus Kindo was sent for autopsy to Govt. Hospital, Lailunga vide Ex.P/18-A. Dr. Raj Kumar Gupta (PW/9) conducted autopsy vide Ex.P/18 and found following injuries:- i) Incisedwound of 7x2 cm in boney deep over left temporal region. ^ ''^''^ (c. ii) Incised wound of 8x3x7cm over back side of neck. Internal parts were found cut. iii) Incised wound of 8x4x5cm over left side of neck. Internal parts were found cut. 6. Cause of death was cardio respiratory and death was homicidal in nature. Sealed clothes of deceased were seized vide Ex.P/20. During course of investigation, appellanVaccused was taken into custody. He made disclosure statement of axe vide Ex.P/8 and same has been recovered at his instance vide Ex.P/9. Seized articles were sent for chemical examination, and presence of human blood over axe recovered from the appellant was confirmed. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Gharghoda, who in turn committed the case to the Court of Sessions, Raigarh from where the learned Additional Sessions Judge, Raigarh received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, prosecution has examined as many as fourteen witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question and has examined defence witnesses Pyari Bai (DW/1) and Bodh Ram (DW/2) on the ground of previous enmity. 7. After providing opportunity of hearing to the parties, learned Sessions Judge, convicted & sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugnedand record ofthe trial Court. 9. Learned counsel for the appellant vehemently argued that conviction is based on evidence of relative and interested witnesses Rakesh (PW/2), son of deceased, Lalit (PW/3), child witness, Padman (PW/4), child witness and Jasinta Kindo (PW/5), daughter-in-law of deceased, which do not inspire confidence and trustworthy. He also argued that as per evidence of Rakesh (PW/2) especially para 4 of his evidence, deceased Nicolus Kindo himself had gone near the appellant and asked why he cw (^•T-. <: has came then appellant caused aforesaid injuries, which shows that present appellant has not caused homicidal death of deceased Nicolus Kindo and Filsita with intent to causetheir death. Therefore, act of the appellant does not travel beyond the scope of Section 304 Part 1 of the IPC 10.0n the other hand, learned Govt. Advocate for the State opposed the appeal and submits that this is a case of double murder and present appellant, on account of enmity for last two years, has caused murder of husband and wife in presence of their son and daughter-in-law. Evidence of Rakesh (PW/2), son of deceased, Lalit (PW/3), child witness, Padman (PW/4), child witness and Jasinta Kindo (PW/5), daughter-in-law of deceased are sufficient for drawing inference that present appellant has caused homicidal death of two persons with intent to cause their death and Court below has rightly convicted and sentenced appellant aforementioned. 11.1n order to appreciate the arguments advanced on behalfof the parties, we have examined the evidence available on record. 12.1n the present case, homicidal death as a result of fatal injuries found over the vital part neck of the deceased Nicolus Kindo and Filsita has not been substantially disputed on behalf of the appellant; even otherwise same is also established by the evidence of Dr. Raj Kumar Gupta (PW/9) and autopsy reports Ex.P/17 and Ex.P/18 that death of deceased Nicolus Kindo and Filsita was homicidal innature. 13.As regards complicity ofthe appellant in crime in question is concerned, conviction of the present appellant is substantially based on evidence of Rakesh (PW/2) and Jasinta Kindo (PW/5), sons and daughter-in-law of the deceased persons and eye witness Lalit (PW/3) and Padman (PW/4). As per evidence of Rakesh (PW/2) at the time of incident he was also present in the field along with his father and mother namely Nicolus Kindo andFilsita (since deceased). Appellant came to the field, he was holding axe. Being asked by his father, appellant caused repeated blow by axe over his neck and other parts of the body. He rushed from the spot and then appellant chased him. Again appellant came back to the field where deceased Filsita was standing. She (.." .c. requested the appellant with folded hand not to kill her then appellant caused repeated assault to deceased Filsita by axe and caused her instantaneous death. Appellant again chased Jasinta Kindo (PW/5) but she managed to flee from the spot. As per evidence of Rakesh (PW/2), he went to the police station and lodged F.I.R. vide Ex.P/15 and Merg intimation was given vide Ex.P/13 and Ex.P/14. Evidence of Jasinta Kindo (PW/5) is well corroborated by evidence of Rakesh (PW/2) son of deceased persons, Lalit (PW/3) and Padman (PW/4), child witnesses aged about 15 years. The Court after satisfying itself that whether the child witnesses are able to answer the questions put to them, has examined them and corroborated second part of the.incident and have deposed that they have seen the appellant going toward the field, holding axe and Kanwar. Appellant was chasing Rakesh (PW/2) but he could not succeed. Appellant came back to field and caused multiple injuries by axe to deceased Filsita resulting into her death. Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination to discredit their testimony that Rakesh (PW/2) and Jasinta Kindo (PW/5) have not seen the incident, appellant has not caused jnjuries over chest then Lalit (PW/3) and Padman (PW/4) have seen the second part of the incident and appellant has notcaused death of Filsita. 14.0efence has examined Pyari Bai (DW/1) but she has deposed that on the date of incident she did not hear the sound of human cry in the field, thus, evidence of Pyari Bai (DW/1) is of no use in the present case. Bodh Ram (DW/2) has deposed that just one day before the incident, Rakesh (PW/2) along with other persons had pelted stone in the house of appellant Sadhu Ram and also threatened that they will throw him out of the village and will sent him in jail. In his cross-examination he has admitted that at the time of said incident he was not present. Even his evidence does not inspire confidence that for arranging to send jail, any personwill not make such arrangement by commission of murder of his own father and mother. Evidence of Rakesh (PW/2), Jasinta Kindo (PW/5), Lalit (PW/3) and Padman (PW/4) and multiple injuries caused by appellant by axe over vitalpartof his neck and her chest are sufficient for drawing inference that present appellant has caused homicidal death of deceased persons Nicolus Kindo and Filsita with intent to cause their death. 15.After appreciating the evidence available on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementioned. 16. On close scrutiny ofthe evidence adduced on behalfofthe prosecution, we do not find any illegality or infirmity in convicting and sentencing the appeljant. 17. Consequently, the appeal being devoid of merits is liable to be dismissed and is hereby dismissed. Vijay Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge