—a IN THE: HIGH COURT OF eHHATTISGARH AT BILASPUR (3 V (."" Criminal Appeal No.--- /^ of 2001. APPEIl.AKTs (IN JAI.L) VERSUS RBSPONBEHTs RAJKUMAR, S/o Rajendra Pra.ssS Khairwar, aged about 28 years, r/o Village Dharnd., IFolice station Raiichandrapur, Dist. Surguja (Chhattisgarh) S'EKXE OF CHHATTISGftRH. Through the police station Ramchanflra piu- Dist. Surguja (Chhattisgarh) ODNVICTIONs V/S 302 OF I.F.C. SEN3SNCE 'Iiife Irnprisonment ^^•^1 y -' .-s:- 7'~ —^A MEKO OF CRIMINA1, AHPBAL UNDER__SE.CTION 374(2) OF ^TOffi CODE: OP CEIIMIN&L PROCEDURE,__1973. Rajkumar S-tateofC.G. JLC Sd/- DIflBENDRA MISHRA Judge Sd/- Judge 23 AUGUST200! Sd/- Dhirendra Mishra Judge i- .II.Ji KS^"^S^S^P3:- d—„—..»•-r ~~e.'. i'-"' -3^S'iS«H*nS?S=H»wc.aAi ... .^ •K.'i§it^!itB'1 VERSOS STATEOFC.G. APPELLANT RESPONDENT Shri Rajesh Pandey Shri Akhil Mishra PL counsel for the appeliant. for the respondent/State. (Delivered on 2S-8-2006) The appellant has preferred this appeal against the impugned judgment dated 14.3.2001' passed by learned Sessions Judge, Ambikapur (Sarguja) in Sessions Trial No. 169/1999 whereby he has been convicted under section 302 of the IPC for causing the death of Phuimatia and sentenced to undergo imprisonment for life. 2. ase of the prosecution in brief is that on 2.4.99 Devan Prasad (PW-6) lodged the First Information Report (Ex.P-6) in Police Station Ramchandrapur to the effect that hls aunt Phulmatia had gone to take broken rice to the house of Nanhu Khairwar (P.W.4) in the last evenini and when she was returning with her bul!ocks Nanhu Khairwar heard her shouts that Rajkumar was assaulting her with axe. On hearing the shouts Nanhu Khainwar went there running and saw that accused Rajkumar assauited Phulmatia on her left hand above the shoulder. Thereafter, when Phulmatia started runnina the accused chased her and gave the second biow over her neck and as a result of the injuries sustained by her she.died. This incident was narrated to him.by Suneshwar in the previous night and thereupon he a!o.ng with Suneshwar went near the dead body where Nanhu Khairwar and other viilagers wers also present. Nanhu Khaimar informed him and other villagers that Rajkumar killed his aunt Phulmatia with axe. He has further stated that there was some disoute befrA/een Rajkumar and his aurri pertainsng to land and also sorcery. 3. After registering the case under Section 302 of the I.P.C. against the accused, the investigating Officer !eft for the scene of occurrence. After conducting inquest (Ex.P-11) over the body of the deceased, the body was sent for autopsy to the Community Health Centre, Ramanujganj, where Dr. B.R.Sharma (P.W.-3) conducted the post mortem and submitted his report (Ex.P-4). Broken rice wrapped in a piece of saree, plain and biooti stained soil were taken into possession from ths place of incident vide Ex.P-14. On memorandum of the accused (Ex.P-15), weapon of offence, i.e. axe (Balua), b!ood stained Lungi and Shirt of the appeltant were also taken into possession vide Ex.P-16. A sealed packet containing clothing of the deceased was seized vide seizure memo (Ex.P-17). Accused vi/as arrested on 2-4-1999. A!l the seized articles being viscera, plain and blood stained soil, axe, clothing of the appellant as ateo that of the deceased were sant for chemical examination to Forensic Science Laboratory vide Ex.P-20. Those articles were also sent to the Serologist for confirmation of the blood group who submitted his report Ex.P-21. After completing the investigation, charge-sheet was fiied in the Court of Judicial Magistrate First Class, Ramanujganj, who in turn committed the case to the Court of Sessions Judae for trial. 4. Learned Sessions Judge framed charge against the appeliant under Section 302 of the I.P.C. The appellant however abjured the guiit. 5. The prosecution in order to establish the charges levelled against the appellant examined as many as 6 witnesses. Thereafter statement of the accused was also recorded under Section 313 ofthe Cr.P.C. in which he denied the circumstances afipearing against him in the prosecution 6. in reply to question No.1, the appeliant denied that Nanhu Khaiwar (P.Vi/.-4) recognises him and he pleaded ignorancs and stated that he does not know the deceased. In reply to question No.25, the accused further stated that he had some larid related dispute with Nanhu Khairwar and, therefore, he in league with the Sarpanch of the viilage had impiicated him as his fath6r had some election related dispute with the Sarpanch. He has stated that Nanhu Khairwar is a tout and he consumes liquor with the Saroanch. He has stated that Nanhu Khainvar and Sarpanch both are touts and they keep impiicating the villagers unnecessarily and thus he has not committed any crime and has been faisely implicated in the case. The appellant has examined himseif in his defence as D.W.-1 under Section 315 ofthe Cr.P.C. 7. The triai Court after hearing -;he Public Prosecutor and the counsel for the appellant ha'^ convicted and sentenced the accused as mentioned above.. 8. Homicidal death of Phulmatia is not in dispute. Even otherwise, from the perusai of the statem^nt of Dr. B.R. Sharma (PW-3) who conducted the post mortem on the body of the deceased and a!so from the report (Ex.P-3) submitted by him mentioning the injuries noticed by him'as described below, the homicidal death of Phulmatia is established: TSar^r •^ViX-^y-^y^-- ^_- -^- v -^. fl) Incised wound 10x6x5 c.m. over the left shou!der. (ii) incised wound 6x4x3 c.m. over the right shoulder. (iii) Incised wound over the back and neck extending from left angle of mandible to backward downward obiique up to near •tl middie of right d'avicle size 16 x8 x 8 c.m. Brain materia! was coming out. On internal examination th®he noticed that the brain had started iiquification and atl the major arteries of the neck were cut. A!i the injuries were caused by hard and sharp edged weapon. Cause of death as opined by him is shock due to excessive hemorrhage from neck and directlv cutting of spinal cord of neck. Q The only question to be decided in this appeal is whether the prosecution has been able to estabiish the involvement of the accused/appellant in the crime in question? 10. Learned counsel for the appellant submitted that witness Nanhu Khaim'ar ss a 70 years old man. From the site plan (Ex. P-9) prepared by the investiaating Qfficer on 2.4.99 it would be evident that the distance of the house of Nanhu Khairwar (PW-4) from the ptace of incident is shown as 800 meters and therefore, it was not possible for him to hear the shouts raised by Phuiroatia and reach the p!ace of incident immediately and witness the crims. It is argued that the conviction is based on the sol® testimony of Nanhu Khairwar (PW-4) who admittedly had inimical relations with the accused as is evident from the statement of PW-6 Devan Prasad, the eomplainant who. has admitted in the cross examination that there_wa^ "lli some disDute between the father of the accused and Nanhu Khairwar regardlng a Mahua tree. Piacing reliance on the judgment ofthe Supreme Court in the matter of Lallu Manjhi and another Vs. State of Jharkhans reported in (2003) 2 SCC 401 learned counsel for the appeilant submitted that PW-6 Devan Prasad'is nsither wholly reiiable nor wholly unreiiabie ind fherefore, the Court below'oughtto have been circumspect and has to iook for corroboratipn in material partlculars by reiiabte testimony, direct or cireumstantial, before acting upon the testimony of witness Nanhu KhainA'ar. Learned counsel further submitted that in the instant case the statsment of this witness ought to have been discarded as in the diary statement Ex. D-1 he has not stated that he had seen the incident rather he stated that he saw the accused running from the place of incident. Learned counse! further relied upon the judgment of the Supreme Court in the matter of Mohan Lal Vs. State of Rajsthan reported in AIR 1993 SC 1457 and contended that Nanhu Khairwar has been wrongiy introduced as the eyewitness to the incident and in fact he had not seen the occurrence and in these circumstances the Court beiow ought to have extended the benefit of doubt to the accused. iearned counse mentofthetrial 11. On the other supported the impugned judgn 12. Conviction of the aooellant is based on the statement of PW-4 Nanhu Khaimar, the soie eyewitness to the incident. This witness has stated in his deposition that he knows the deceased and the accused. He has further stated that when deceased Phuimatia was returning from the house of Bania with broken rice, Rajkumar assaulted her with axe on her ieft hand above the shoulder and thereafter he again assaulted her on the _-<a-se—*-=&^. ^w^s^is ik i_.'!..'.i'l"lili'i-^^*^'~r^; SSSSSaSftS^F. Ba'l?<!.E>.-u:.,y---lri'^.. neck. At that time this withess was taking his cow to his house and when he heard three shouts raised by Phulmatia he went to the piace of incident. He stated ihat accused Rajkumar assauited Phulmatia with axe and thereafter went running tpwards the rivulet. The age of this witness has been assessed by the trial Cpurt as 55 years. However, in the cross examination a suggestion was put to him that his age might be 70 years, he accepted the same. However, he has stated that he did not know the meaning of "seventy". This witness has denied that the rivuiet is one and half Koas away from his fieid. He has stated that the distance of the rivuiet was so much that shoute of cai! could be heard from there. !n his further examination he has stated that the distance is about 150 ft. So far as the argument of {he counse! for the appellant that PW-4 being 70 years of age couid not have witnessed the incident, there is no evidence to show that this 'A'itness v/as not able to see properiy as he has denied the suggestion to this effect. In site pian (Ex. P-9) prepared by the investigating Officer the distance of the house of Nanhu Khairwar and the place of incident is shown to be 800 meters and according to the counsel for the appeliant from such a distance the shouts raised by Phulmatia couid not be heard by witness Nanhu Khairwar. However, if it is seen minuteiy the distance between the above two places appears to be 300 meters. Even otherwise 'earned counsel for the appeliant subm regarding the above distance. Patwari, though not proved during house of Nanahu Khairwar and the its that no suggestion has been put site plan prepared by Halka I, shows that the distance of the of incident was 263 meters. Site prepared by the Investigating Officer is not a substantive piece of and the eyewitness account given by a witness cannot be 7 disbeiieved only on the basis of entries in the site pian as the same is hit by section 162 ofthe Code of Criminal Procedure. 13. Since there is a° cross examination of the investigating officer with respect to the distance between #ie threshing field of Nanhu Khairwar and the place of the incsdence, the eye witness account given by PW-4 in the site plan of Ex. P-9 cannot be disbe'ieved. Statement of PW-4 Nanhu Khainvar is corroborated by the statement of PW-6 Devan Prasad, complainant and the same is proyed by First Information Report Ex. P-6. This witness has stated that he. recognized the appellant and the diseased. He went near the rivuiet with Someshwer where the dead body was lying. When he reached there the Sarpanch and other viliagers told him that it was the body of his aunt. Nanhu Khairwar told him that Rajkumar killed his aunt. Thereafter he went to poiice station Ramchandrapur and lodged the report of the incident. He further stated in the cross examination that his aunt was going to her home after takini broken rise and buliocks. He has further stated that from the house of Nanhu Khaifwar'rivulet can be seen. He stated that Nanhu Khainwar takes liquor and on the date of incident aiso he had taken liquor in the meeting. He, howevsr, denied thatthe Sarpanch asked him to name Rajkumar. He further stated that Nanhu Khairwar informed him that Rajkumar kilied hls aunt. Statement of PW-4. Nanhu Khairwar is corroborated by the statement of PW-6 Devan Prasad who has mentioned therein that Nanhu Khatmar witnesssd the incident and-described the injury inflected by the accused. The statement of above witnesses is further corroborated by the statement of PW-3 Dr. B.R. Sharma and the postmortem report in which corresponding injuries found on the body of the deceased have been ia^s^ described. So far as the defence of the accused and his statement recorded under Section 315 of the Code of Crimina! Procedure as DW-1 are concerned, we have already recorded in the foregoing paragraph that in reply to the question put to the accused under Section 313 of the Code of Criminai Procedure initially bjfe stated that witness Nanhu Khairwar does not recognize him, however as a defence witness in paragraph-1 he has admitted that he is recognized Nanhu Khairwar and Ramjeet and he does not know name of wife of Kashinath. However, he has statsd that he knows Phoolmatia who was resident of his village. The defence of the accused has been disbelieved by the Court be!ow on the ground that the defence taken in his statement is not reflected in the cross examination and none ofthe witnesses' examined bythe prosecution has supported the statement of Rajkumar. 14. Thus considering the fact that name of the accused/appellant very much appears in the First Information Report lodged by PW-6 Devan Prasad and aiso the fact that incident was witnessed by PW-4 and that the defence has not been able to elicit anything in the cross examination of PW-4 Nanhu Khairwar or PW-6 Devan Prasad which makes their statement doubtful or unreliabie, we are of the considered opinion that the tria! court has not committed any iilegality or infirmity in convicting and sentencing the appellant as menfioned above and accordingly the appeal is iiabie to be dismissed and the same is dismissed. Sd/- Fakhruddin Judge Sd/- Dhirendra Mishra Judge I'StsadSS-SSsS;-;