BaiK i^^^a^s HIGH COURT OFCHHATTISGARH. BILASPUR Criminal Appeal No.290 of 2004 APPELLANT: (InJail) RESPONDENT: Ramdhan S/o Akalu Ram Harijan aged 35 yrs. Occupation cultivator, R/o village ' Chhotesa!hi P.S. Khadagawan, Distt. Koriya. .Versus State of C.G. {Appeal underSection 374 ofCode cf Criminal Procedure} Present: Mr. Abhay Tiwari, counsel f6'r the appe'iant. Mr. Arun Sao, Govt. Advocate forthe State/respondent. Division Bench: - Hon'ble IVIr. T.P^Sharma and Hon'ble IVIr. R.L. Jhanwar, JJ ORALJUDGMEMT (10-9-2010) T.P. Sharma, J: - 1. Challenge in this appeal is to the jydc, :i-2nt of conviction & order of sentence dated 29-12-2003 passed by 1.;'-' Additional Sessions. Judge, Manendragarh in Sessions TrialNo.117/1003, whereby & whereunder learned Additional Sessions Judge after holding the appeilant guilty for commission of culpable homicide amountsng to murder of two years aged child Purnima and threat to Madhu ti.'ahan (PW-1), convicted the appeliant under Sections 302 & 506 Part-il of the I.P.G. and senteneed him to undergo imprisonment for iife & pay fine of Rs.1,OOQ/-, in default of payment offine to further undergo R.!. forfive months and to uhdergo' R.l. for two years, respectively. 2. Conviction is impugned on the ground that without any iota of evidence relating to culpable homicide amounting t6 murder of Purnima-and threat to Madhu Mahan(PW-l), the triai Court has convicted &senter(cedthe appellant and thereby committed illegality. 3. Case of the prosecution, in brief, is that Madhu Mahan (PW-1) was residing with the appellant along with her twoyears aged child Purnima . (sinGe deceased) under compulsion. On the fatefu] day of 7-12-2002 at ys' wx9 ^^ ^"^t^ .'s ,,^/ l^g aboutS p.m. theappellant had thrown the two yearsaged ehild on a hard surface and caused serious injuries to her resulting in her death. The appellant had also confined Madhu Mahan (PW-1) andthreatenedher notto say about the inGident to any person. The dead body of Purnima was buried and thereafter,1t was exhumed on the complaint made by Madhu Mahan (PW-1) vide Ex.P-1,on 10-12-2002. Mergintimationwas recQrcledvide Ex.P-3. Dead bodywasexhUmedvidepanchnamaEx.P-4 and it was identified vide Ex.P-5. Spot maps were preparedvide Exs.P- 6 & P-7. After summoning the witnesses, inquest over the dead body of Purnima was prepared vide Ex.P-8. Dead bodywassentforautopsyto Primary Health Centre, Khadg^wan. Dr. A.K. Agrawal (.PW-13) conductedautopsyvideEx.P-IO^ndfouhdfollowinginjQries:- (1) Big size contusion over side back ofhead; (2) Contusion overchest and back; (3) Cpntusion overabdomen, thigh and private parts; and (4) Contusion over both the lip&. Qn internal examination, subdural haematoma was found overthe body of the deceased and 4th, 5 &6 left ribs were also found fractured. Bloodwas found on theforesic cavity. Left lungs were found punCtured on accountof fracture of ribs. Cause of death was shock and death was hQmicidal in nature. 4 Statements of the witnesses were recorded under Section 161 ofthe Cr.P.G. After completion of investigation, charge sheef was filed before the Court of Judicial Magistrate FirstClass.Manendragarhwho committed the case to the Court of Sessions, Ambikapur frpm where learnedAdditional Sessions Judge recejved thecase ontransferfor trial, .f 5. In order to prove the guilt ofthe appellant, the prosecution has examined as many as thirteen witnesses. The accused was examined under Section 313 ofthe Cr.P.C. in which he denied the circumstances appearingagainst him, pleadedinnocence and false implication. 6. After affording opportunityof hearing to the parties, learned Additional Sessions Judgeconvicted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the pari:ies, perused thejudgment impugned and record of the trial Court. .® iS',.E."Uf'l^"l..b:;riys^dt^K I'^isi-^^.^Rgi^l 8. Learned counsel for the appellant vehemently argued tttat in the present case, as per theevidence of the prosecutlon, the appellant has thrown, two years aged girl child on floor, therefore, the child sustained some ihjuries and as a resultof injurjes she died after some time. This shows that theappellant has notc^used any injury to the girl child with intent to cause her death orwith intent to causeculpable homicide amounting to murder. If the case of the prosecutipn is admitted in its face value, even then.theact of the appellant does nottravel beyond SeGtion 304 Part-1 ofthel.P.C. 9. On the pther hand, learned State counsel opposed the appeal and submitted that the appellant is uj^der obligation to save and secure the »; • .—;._.:1..1 .. : .--' ;-: -- .^1 ._..... . ' .;. ...•' life of Purnima - daughter of Madhu Mahan (PW-1), whowas residing wjth the appellant as his wife. But instead of saving the life of PuFnima, daughter of Madhu Mahan through another person Rajesh Dubey, the appellant has thrown her on the floor and caused severe injuries resylting in her death. This shows the brutal act of the appellant, of the commission of murder. Even after. eommitting such offence, the appellant has compelled Madhu Mahan (PW-1) - mother ofthe child that she should not intimate the incidentto another person and the dead body was buried. But afterwards, the dead body was exhumed at the instance of mother of the deceased girl child. This'shows the further brutal and. mercilessact ofthe appellant. ilft 10 Inorder to appreciate the arguments advanced on behalfoftheparties; we haveexamined the evidence available on record. 11.1n the presentcase, homicidal death of the two years' aged girl child Purnima as a result of serious injuFies has not been substantially disputedon behalf ofthe appellant, othenwise also same is established by the evidence of Dr, A.K. Agrawal (PW-13) and autopsy report Ex.P-10 which reveal subdural haematomg; fracture of 4,5 & 6 ribs; fracture 6f left lung; and presence of blood over the bodyof the deceased, and' thatthe injuries were ante-mortem and death was homieidal m nature. 12 As regardscomplicity ofthe appellant in the crime in question.conviction is based on the evidenceof mother of the deceased girl child Madhy Mahan (PW-1) who was residing with the appellant. As per her evidence, the appellant hadkidnapped her along wfth the deceased and on thedate of incident, the appellant throwntbe twoyears' aged girl child IKfB'isa":;ss-i!-. Purnima on floor and caused her death. After causingthe death of the girl child, the appellant concealed the dead body of Purnima and has threatened her (this witness) that she should not say the ineident tp Sarpanch and she should only inform the Sarpanch that the child has died as a result pf illness. On second day, the appellant himselftold the Sarpanch that the child died as a result of illness and, therefore, fhe' dead bodywas buried. Even theappellant has confined this witnessfor some days. After third daysome Dewangan Police Officer met her to whom she narrated the incident. • 13. Defence has cross-examined this witness at length and tried to show that 'tj' / ' .. . , , ~ .„ • : . :.. the deceased girlchild died as; a result of her long illness which this witness has denied and has specifically deposed that the appellant had thrown the girl child on the floor and caused her death. Although Chameli Bai @ Podhin (PW-2), Rambaran (PW-3) andSamaylal (PW-4) havenot supported the case of the prosecution, it is clear from the, evidenceof Madhu Mahan (PW-1) that she has not stated anything to these witnesses relating to the incident. l4,0nthebasis ofthe complaint made by Madhu Mahan (PW-1), the dead body of Purnima was exhumed andautopsy was conducted by Dr. A.K. Agrawal(PW-13) who found the aforesaid injuries. On the date ofcross- examination, Dr. A.K. Agrawal (PW-13) has denied the fact that injuries found on the body of the deceased girl child may have been caused as a result of spme massage or pressure on the body. Defence has also suggested to this witness that at the tim.e when the dead body was buried the injuries could have been caused on accountof pressureof stone. But the fact remains fhat the dead body wasburied and tbe injuries found over the body of the deceased were ante-mortem. Therefbre, it would beofno help to the defence. 15. Evidence of Madhu Mahan (PW-.1) - mother ofthe deceased girl child is syfficient for drawing inference that the appellant has thrown the two years' aged girl child on floor and caused her death. l6.As regards motive, as perthe caseofthe prosecution, Purnima was born to Madhu Mahan (PW-1) through her first. husband Rajesh Dubey and the appellant was keeping the mother of Purnima i.e. Madhu Mahan (PW-1)as his wife and also the deceased girl child Purnima. The appellanthad thrown thetwoyears'aged girl child on floor which itself is :?.^ "^s^ ,.J.'<: 1^1 MW^^Ss^^s Soma 'R^ suffieient for drawing inference that the appellant has intentionany committed the aforesaid offenee with intent to commitcylpablehomicide amounting to murderofthe two years' aged deceased girl child and also threatened Madhu Mahan (PW-1). \ . .. '.• ,..' . • • . '.' .'••'-• .' ".' .. • : 17.After appreciatingthe evidence available on record, learned Additional Sessjons Judge convicted the appellant for commission of culpable homieide amounting to murder of two years' aged girl child and sentenced him to undergo imprisonment for life along with other sentences. The trial Court has not committed any illegality in convicting and sentencing the appeTlant. On close scrutiny of evidence, we do not find any illegality in eonvicting,and sentencing the appellant warranting any interference; - l8.Consequently, the appeal is devoid of merit, same is liable to be dismissed and it ishereby dismissed. Sd/- T.P. Siiarma Judge Sd/- R.L. Jhanwar Judge 1--':^3'£;;^^U^^T^S^?:^ .!.'-',