HIGH COURT OF CHHATTISGARH, BILASPUR ' x ’ Cnmmal Appeal No 10% 0f 2001 PPELLANT; I H ’ Joglram S/o Ramjhool aged 27 yrs . 'v » j ‘ R/o Village Bodsara TehSII Takhatpur ' Distt Bllaspur 2V 4, . g Versus ‘ ‘ RESPONDENT; " State of Chhatusgarh Through ihé . H : . ‘ a: - S HO PS Hlm Dlstt Bllaspur ' {Crlmlnal appeal under Section 374 (2) of the Code of Cr:m1nal Procedure} .Present I ‘ v . ' r . . I.--__", H ,‘ g Mr Rajneesh Kumar Shnvastava counsel forthe appeliant ML Ashrsh Shukla Govt Advocate for the State/respondent , DIVISlon Bench - Hon ble Mr T P Sharma and Hon ble Mr R L Jhanwar JJ ‘ ORAL JUDGMENT (20 9 2010) TP-xSha‘rmagJ' Vt :H . ‘ ' ’ ’ ' V ‘ 1 Channge In this ppel Is t the jm o cVIctlon & odr of isentcnce ded 24 8 2001 p y the 7 ditionl Sessrons Judge ‘ Bllaspur m Sessrons Trlal o 11/001 y whereundertearned wAddItIonal Sessmns Jude ar di apellant guily for' ’ of fe ulpa oe a e c f atmp o com s he V, la nder c 0 30 te n e an sed m afte u . c 9 of ' . ," r 2. :ConViction is impugd on he gound th Wit y iot f eVidence ' ne t r at hout an a o t u te sentee the apln er ‘dga - e pro th marge t I s as le on the faful ut l ta u g t pon fr t bt along With his brother Keshav (PW 2) aged about 8 years the appellant came With knife assaulted on the neck oi Uttari Kumari and caused her e aa o udgent f on re at assed b Ada N 92 whereb & ‘ g fte holng the p t commlsswn the ofnce of cble hmlcud amounting to murder of " Uttarl Kumr! and th offene o tet t mit uICIde conVIcted t appelnt u Setlons 32 & 9 of h I P C and senteced him to undergo Imprisonment for lif d relea hi r admonition nder ’Setion 30 the] P C ' “A :fhe trial Cort has conVicd & ncd pelat and theby “fcommitteillelity v 3. Cas of the secution m brief is at ria of Utari Kumaii (Since ’l ‘- ‘ ‘ deceaed) w settd With the appellant te day of 12 3 2001 " at abo 8 30 a m whie Utri Kmari was omg o d o aking ah ‘ ‘i y ‘l‘Id'éath The appellant hrmseif alse caused ': wr ’ v V’Vtshambhar (PW-1) — father of Uttarl Kuman went to the Police Station ‘and lodged FIR wde Ex P 1 Merg was recorded Vlde Ex P 17 After " ':". r . ‘summonlng the Witnesses Inquest over the dead body of Uttarl Kumarl " was prepared vrde ExP2 Dead body was sent for autopsy to 'yGovernment Hosprtal Brlaspur vrde Ex P-9A Dr N S Chandel (PW-10) _conducted autopsy vrde Ex P 9 and found followrng Injuries - y. (1) Incrsed wound of 2 c m x 1A c m x “A c m over right fore arm and ‘ ‘ (2) lncrsed wound of 14 c m x 4 c m x 3 5 cm Over neck thyrord cartilage esophagus muscles blood vessels and nerves of neck ‘ T were found cut ’ ' ' Mode of death was shock and death was homICIdal In nature .. The appellant was sent for medlcal examrnatlon on 13 3 2001 he was examined by Dr R L Dhntlahre (PW 9) vrde ExP 8 and one {noised A ‘ wound was found over hrs neck skin trachea and other muscles were Valso found cut One shawl was serzed from the spot vrde Ex P 3 Knife ' s aplaln & bloodstamed scll were serzed from the spot vrde Ex P—4 Sealed I ‘ clothes of the deceased Were seized vrde Ex P 6 Injury found over the a: I I I ’ body of the appellant was found grievous In nature vrde Ex P 7 Seized V I articles were sent for chemrcal examrnatron and presence of blood was I = confrmed on banlyan and knife of the appellant Vlde Ex P 14 Statements of the Witnesses were recorded under Section 161 of the Cr P C After completron of Investlgatron charge sheet was filed before , ' the Court of JudICIaI Maglstrate First Class Bllaspur who commltted the case to the Court of Sessions Bllaspur from where learned Addrtronal Sessions Judge recelved the case on transfer for trlal V V ‘ ‘ _ In order to prove the gurlt of the appellant the prosecution has examrned‘ V y _ {as many as fourteen wrtnesses The accused was exammed under I Sectron 313 of the CrPC rn which he denled the crrcumstances‘fff ppearing agamst him pleaded Innocence and false Implrcatloh By adducrng defence Witnesses Kalrka Prasad (DW—1) Shlv Kalesh (DW 2) I x .& Dwarlka Prasad (DW-3) the appellant has trled to prove that Uttarl ' umarr was assaulted by Purushottam and not by him fter affordlng opportunity of hearing to the parties learned Additional: r .SeSSIons Judge convrcted & sentenced the appellant as aforementioned V I a . " - v n ' ' f _ ; , a . 'y K . :A I'-_ 8 We have heard Iearned counsel for the partues perused the judgment "impugned and record of the trlal Court ‘ 9.: Learned counsel for the appellant vehemently argued that in the present ' ‘ j case none of the prosecuhon Witnesses has supported the case of the ' prosecution their eVIdence do not Inspire confdence and rs not trustworthy On the baSls of contradictory statements of the Witnesses convrctlon of the appellant would not be pOSSIbIe On the other hahd the :acoused has sUccessfuIly dlscharged his burden In provmg that Uttarl 'Kuman was killed by Purushottam and not by him and that Purushottam has assaulted the appellant also Learned counsel further argued that In wthe present case the trral Court has placed reliance on the evtdence of ".Keshav (PW 2) aged about 8 years which 1s not rellable In the Ilght of I the Jttdgment of the Madhya Pradesh Hrgh Court in the matter of v Sukhram v State of M P (1 995 Crl L J 595) In which DIVlslon Bench of ' , the Madhya Pradesh Hlgh Court (Bench at Indore) has held that In case ‘ I of Infrmltles of description on pomt of proper Identlfcatlon and tutoring of . ‘child Witness conVIctIon on the baSIs of sole eVIdence of ohlld Witness Is notproper ’ . _ ' 1O On the other hand learned State counsel opposed the appeal and , submitted that In the present case all the prosecution Witnesses have deposed agalnst the appellant If their eVIdence Is conSIdered together 1 the only concluSIon that the appellant has assaulted Uttarl Kumarl would . be pQSSIbIe Learned State counsel placed reliance In the matter of Hlmmat Sukhadeo WahUrwagh and others v State of Maharashtra ‘ {(2009) 6 SCC 712} In which the Supreme Court has held that a child Witness able to answer the questions and understands sanctity of oath Is 'a competent Witness and rellance can be placed 1 1 In order to appreCIate the arguments advanced on behalf of the parties we have exammed the eVIdence adduced on behalf of the parties ‘ 12 In the present case homICIdal death of deceased Uttarl Kumarl as a result of fatal Inturles found over her neck has not been substantially disputed on behalf of the appellant otherWIse also It Is establlshed by the eVIdence of Dr N S Chandel (PW-1 0) and autopsy report Ex P 9 that the death of Uttarl Kumarl was homICIdal In nature 13 As regards complICIty of the appellant In the crime In questlon In the present case the appellant has taken speCIfc defence that he has not >1 ' . it a ri ‘ -- ssaulted Uttan Kuman and one Purushottam has assaulted Utta 'Kumarl The appellant has examlned Kallka Prasad (DW-1) Shiv Kalesh :1 (DW 2) & Dwarlka Prasad (DW 3) who have deposed that on the fateful a :day when they were 90mg to pond for taking bath along With Joglram ’ ‘ . the appellant herem they have seen Purushottam who was running from. 1 ‘ 3 : the spot and Joglram told them that Purushottam has assaulted Uttan 'VKumarI and also him In their cross-exammatlon these defence , .l 'Wltnesses have dented the adverse allegations _, 14 ln the present case appellant Joglram has been examined under Section 313 of the Cr P C but he has not offered any explanation that y as to who has caused Injury to Uttan Kuman and also to hlm The I‘- appellant was also Injured at the time of mCIdent As per the case of the” ”-proseeufon the appellant has trled to commit suICIde by cuttmg his neck ._ and he was admitted In the hospital The appellant was arrested after“: r ‘ I long time, but he has not lodged any report relatmg to the mmdent or at ' least relatmg to the Injury sustained by him This shows that the defence y ‘ ..‘ ,. itaken by the appellant Is an after thought 15 As per the evtdence of Keshav (PW-2) child Witness who was present V at the time of incident on the fateful day he was gomg to pond along With ' y ‘his Sister Uttarl Kumari (Since deceased) for taking bath and the‘ _:> appellant has assaulted her With knife he shouted on which other' ‘Tpersons came As per the ewdence of Vishambhar (PW—1) — father of ‘ ' the deceased Bahoraman Prasad Kaushik (PW~3) & Gulab Das (PW-4) V 'When they reached to the spot they saw that Uttari Kuman was tying on the floor With injury over her neck and the appellant was sleeping upon f "her he was also injured Kirti Bai (PW 5) has deposed that she has. ’ seen the inCIdent and the appellant has assaulted Uttari Kumari There v ._ are some contradictions and omisSIons in the eVIdence of these l. Witnesses relating to their preVious statements but they have speCiflcally I deposed that when they reached to the spot Uttari Kumari was lying on the floor in injured condition the appellant was sleeping/lying upon her V‘ both were injured and the appellant was in possesSion of knife & shawl 1 6 As per the F l R and the eVIdence of Vishambhar (PW—1) marriage of‘ I A ' the appellant was settled With Uttari Kumari the appellant was not happy . With Uttari Kumari on account of her Ramayan paath and that Is the t . motive for commisswn of offence lf the eVIdence of aforesaid Witnesses ‘ ' I i ”I' ? f ‘ : b g ’ i appellant and Uttan Kuman both were present would be possible ‘ incident Uttan Kuman was lymg With mjury over her neck and the lying upon her wrth injury The appellant has not appellant was also offered any explanation that as to who has caused Injury to Uttarl Kuman ’ ' nd who has caused lmury to hlm and why he was sleeping upon Uttan - umanmay dre ‘ v K questrons put to hrm 19 3 Sectren 309 of the 17 As regards motive l P C rs sustainable under the law However while convrctmg the appellant under Sectron 302 of the lP C the tnal Court _ ls constdered together the only lnference that at the trme of lncident the y I U ‘a Another wrtness Keshav (PW 2) was also present near the place of " ' p V.";_,Kumarl i‘ appellant ln has absence caused of fatal aforesaid Injuries explanation to Uttarr Kumarl the only would inference be possrble that the ‘ " I ' as per the evrdence of the prosecution marriage of V .' _ th V ‘V e appellant was settled wrth Uttart Kumarr and the appellant Was not a h V . appy wrth Uttan Kuman on account of her Ramayan paath Atthe trme I a o i . f lso IncTdent caused the fatal appellant Injury upon has hrs not neck only and assaulted trred to Uttarr commit Kumarl surcrde but Thrs has f hows that the appellant was provoked by the act of Uttan Kuman and rthout any premedrtatron on the spur of moment when he saw Uttarr :uman aused injury he assaulted to Uttarl her Kumarl Thls wrth further mtent shows to cause that the her appellant death but has at not the i _ rg Vt . 4 I . ime of assaulting her he was knowrng the fact that by hrs act Uttarl As regards reliability of the evrdence of chrld wrtness Keshav (PW-2) as a '1 held by the M P Htgh Court m the matter of Sukhram (supra), n case of y I tutoring of chrld Witness and discrepancy regarding rdentlflcatron sole ‘__ evrdence of chrtd wrtness rs not proper to rely ln the present case the, x? prosecutron has not relied only upon the evrdence of child wrtness and there rs no drscrepancy tn hrs evrdence retatrng to rdentrty of the accused As held by the Supreme Court rn the matter of Hrmmat Sukhadeo (supra) a chrtd wrtness rs also a competent wrtness ln the present v case evrdence of Keshav (PW—2) msprres confrdence rt Is trustworthy, and he understands hrs duty to speak truth and was able to answer the After apprecratrng the evrdence avarlable on record learned Addrtronal Sessrons Judge convrcted and sentenced the appellant under Sectrons 302 & 309 of the l P C Convrctron and sentence of the appellant under 5 H i,;~ ' It a s " w ' : “K " _ l t 18 . » " as ‘nt considered he circumstances and sentiments c the aellant in wic he as commtted the aforesaid offence, and there committe illealit. Ce l pt f of l p ip tll t y 4 red a t as 20 onsequntly, the appea is partly allowed Conviction of the apellan under Section 309 o the i P C Is hereby maintained ConVIctIon of the ppellant under Secion 302 of the l P C is altered to Section 304 Part- the .P.C. and the apellant Is hereby sentenced to: undergo a t mrisonment for the‘ period already undergone by him i e from 7 4—2001 ‘i dae for about more than 9 ears months He be released forthwrth if not eqUir in ny oher ce Sdl- T. P. Sharma Sd/- R.L. Jhanr Judge h p t f pp hh h i by d gy wa