4T ^A^ ^ 5. 3 ^i-- ^!ahti 3 if ^^ "F' ^°&-3 ,^n^ F 3sE ? A *m a?n S ^- -fKT^ ^ 3mS J'. ..I <?ri T?=I 7C^ E 3 ^L .4i"'L F^ & S HIQH CQURT OiF5' CHHATTI^CAR.H AT SILASPUI DB._nON'Ii.i..SHRLDHjRENDRA_ftfilSHRA^a UQN'BLE SHRI MANtMDPA MOHAN SHRIVASTAVA. JJ Criminai Appeai No. 831 of 1880 AfiBeiia.ni : Pherulai son of Milapram Satnami, aged 25 years, (!n iJ.a'!) Occupation student, resident of gram Badepaa'armuda, P.S. Maikhuranda, Distrlct siiaspur, MP. -^y Respondent : The State of M.P. (novi/ 'Chhattisgarh") through Malkuhranda, Distr'ct Bilaspur. Mr. Ajay Mishra, counsei for the appeiiant. Mr. Ashish Shukla, Govt. Advocate for the State. JUDQMENT (21stJanuary,2010) Per Dhirendra Mishra. J This criminai appeal under Section 374(2) of the Code of Criminai Procedure is directed against the judgment of conviction and order of sentence dated 30ih June, 1990 passed in S-T.No.120/88, wherebyi learned 4 Additional Sessions Judge, Bilaspur has convicted thel appellant under Section 302 of the iPC and sentenced hirn to iife imprisonment for causing homicidai death of dsceased jhunibai. 02. Briefly stated, case of the prosecution, as proiected in para-3 of the impugned judgment, is that on 27.9.1987 at about 7 am, deceased Jhunibai had gone to take her bath to village tank. During that period, uhe appeiiant, who is husband of the deceased, had aiso come to his in-laws' piace, and he went out of their house on the pretext of going to the field. Thsreafter, Tiketinbai, mother of the deceased, was informea by Chaitram that her daughter is lying dead in ths tank. She went to the tank and found Jhunibai lying inside tl-ie tank face down. She had sustained injuries over head, eyes, nose and toes. The appeiiant ran av»ayafter murdering Jhunibai. 03. Compiainant Goreiai (PW 16). son of the Village Kotwar, lodged First Information Report in the Poiice Station - Malkharouda on 27.9.1987 at 12 noon vide Ex.P/18. Merg intimation or' Ex.P/19 was aiso recorded on the basis of his information. The poiice proceeded for the scene of H^ occurrence and prepsred inquest over the person of the deceased vide :x.P/8A. The dead body was sent for autopsy to Primary Health Centre, Malkharouda vlde Ex.p/10, where Dr. P.R. Dewangan (PW 9) conducted postmortem and gave his report vide Ex.P/11. The ietters (Ex.P/5A & P/5B), purportedly written by the deceased, were taken into possession frorn the appeiiant vide Ex.P/5. On the memorandum of Ex.P/2 of the appeiiant, weapon.of offence - iathi was taken into possession vide Ex.P/3. Bioodstained Baniyan was taken into possession from the person of the appeiiant vide Ex.P/7. Spot map was got prepared by Halka Patwari - Lagin Prasad Bharat (PW 10) vide Ex.P/14. Articles seized during investigation i.e. Baniyan, lathi, wearing appareis of the deceased, piain & bioods'tained soi! etc. were sent for chemical examinatlon to Forensic Science Laboratoi"y, Sagar vide Ex.P/20 and report of the FSL is Ex.P/23,, in which Baniyan and lathi, seized from the appeiiant, were found to bd stained with blood. 04. After compieiing usuai investigation, charge sheet was fiied against the appeiiant in the Court of Additionai Chief Judiciai IViagistrate, Biiaspur, who, in turn, committed the case to the Court of Sessions Judge, Biiaspur and the same was received on transfer by the iearned Auditionai Sessions Judge for triai. 05. Learned triai Court framed chargss under Ssctions 302 & 201 of the iPC against the accused, who abjured his guiit. The prosecution in order to establish charges against the accused examined 19 witnesses in aii. Thereafter, statement of the accused was recorded under Section 313 of Cr.P.C., in which he denied the circumstances appearing against hirn in the prosecution case and pieaded innocence and faise impiication. 1-ie further stated that his mother-in-law has paid money tp Lachhanbai and witnesses are deposing against him as tutored by hite mother-in-iaw. OS. Learned trial Court, after hearing counsei for ths respective parties, convicted and sentenced the appeilant as mentioned in Para-1 of Shis judgment. Hov»ever, the triai Court acquitted the appeiiant of chargs under Section 201 ofthelPC. 07. Homicidai death of Jhunibai is noi in dispute. Even otherwise, from ths evidenue or' Lachhanbai (PW-13), who ciaims herself to be an eyewitness of the incident, and further, the evidenee Dr. P.R. / • 3 ^' Dewanyan (PVv-S), Vi/ho conducted postmortem and proved his report of Ex.P/i 1, in which he found foliowing injuries on the person of the deceased, and opined that the cause of death is mainiy asphyxla due to drowning to be homicidai in nature and secondiy, shock and hetnorrhage due to injuries found over the dead body and the death occurred within 12 hours from the time of postmortem sxamination, hoinicidai death of jhuniba! is established. ?";.o uo. jnlynes on^Xieniajjexaminaijon^ (i) One iacerated wound on the middie of head of size Vi' x ti" x %", iii) Une iaceratea wounci on tne ngnt panetal region trianguiaf- in snape i/T? -.^ -1 '!.-f" T./ l^" OT SiZS Z Vi X i V2 X /<a' , (iii) One iacerated wound over ieft parietai region trjanguiar in shape of size 4" x 1 %" x 2 %", (iv) Two iacerated v»'ounds over occipitai region pf size 1 %" x %" x %" verticai obiique in directlon, and second iacerated wound of size 1 %" x %" x %" paraiiei obiique in direction, (v) One iacerateci vvound over ngnt parietai resion on posieriui" part verticai oblique in direction ofsize 2" x %" x %". Qn iiiit^frjal sxSiiTilnstion: On iRternni exaiTiinauon, skuii was found congested and there w&i'c niui^piy is'^Ctiur^s OT SKUII DOHS. Siiri Ajay ivlishra, learned counsei for the appeiiant, argued that convicuon of ths appeilant is based on the evidence of ten year-oid chiid witness Lachhanbai (PW-13). There is material discrepansy in her evidence befor®the Court, her diary statement ot' Ex.D/2 and her statement under Section 164 of Cr.P.C. regarding weapon of offence and presence of the persons at the time of incident. This witness has ciaimed that the appeiiant assauited the deceased with axe on her head and other parts of the body, whei'eas in her eai'Iie.r version before ti'ie poiice and ths Magistrate, she siated that the assaults were dsait by club. Her tesumony is not cot'roborated from the evidence of Dr. P.R. Devi/angan, who has noi found any incised injury over the person of the cieceased and has further opined ihat ail the injurics were caused bv hard and blunt object. it is further argued that this witness has categoricaiiy deposed jhat there wsre 12-15 parsons present in the tank and were taking bath. ^ ^-^^% @ 'ff S 'w^ v 09. nowever, none or tne witnesses has Oeen examinea by the prosecution, and conviction is based on the solitaiy testimony of this chiid witness. Referring to ths evidence of PVV-1 Tiketinbai, mother ofthe daceased, it is argued that this witness is a!so not a Vi/itness of ti'uth as her testimony that she was infoi-med by Chaitram about the death of her daughter, is not cori'oborated frorn the evidence of Chaitram, who does not say that he went and informed Tiketinbai about the incident. The prosecution has tried to impute motive to the appeilant that he murdered the deceased as he had iearnt about her e)dramaitiai affairs with Bhuruiai (PVv'-16). Hovv'ever. the prosecution has utterly faiied to estabiish the above fact as neither Bhurulai nor Ashok Kumar i'FW-3) has stated anything in this regard. Even seizure of the aiieged tetters from the appeiiant has not been estabiished as there is no evidence of handwriting expert that these letters were wntten by the deceased. 10. On the other hand, iearned counsai for the State supported the impugned judgment. 11. We have heard learned counsei for the respective parties and perused the materiai avaiia&le on record as also the impugned .judgment. i^.. •i •"? i»->. 7he triai Court has convicted the appeliant under Section 302 of the iPC. However, he has been acquitted from the charge of Section 20'i of the iPC. The finding of conviction has been recorded mainiy on the evidence of PVtf-13 Lachhanbai, PW-2 Horilal, PVV-4 Amardas, F3VV-14 Chaitram and PW-1S Premiai. FW-1 TitetinbS], mother of the deceased, has deposed that on Sunday, the day of incident, her son-in-law Pherulai came to her house. At that time, her daughter asked her (Tiketinbai) for going to the tank to take bath and accused aiso went away on the pretext of going fowards fieid. Haif an hour thereafter, Chaitram informed about the iiiCident, whereupon she rushed tovi/ards the tsnk and found her dead lylng in the tank with her face dovi/nwards. She was aii'eady dead and she had sustained injuries on various parts of her body. FW-13 Lachhanbai is a chiid, aged 10 years. After her preiiminary examinaiion, the triai Court recorded her evidence without administering oath. She deposed that she studies in Class-IV in the -$• w^ tlj. viiiaye schooi and she Knows tne appeiiant, who ais6 resides in her viilage. She aiso knew deceased Jhunibai, who resided 3-4 houses avVfflV u'orn n©rnouse. ^n 1:118 G3i:6 SHO urne 01 snciOeni, sne 'was piayiny undsr ine Danvan tree, wnicri is aujaceni. 10 the ianK, wiiere ^hUHibai WS3 tSR.ing hef b^tH. At thdLt ttfucf, tHS appeiiSHt canio thors and assauited her on her head by axe. Aftsr assaulting by axe, he caught hoid of ner haif anci was presslng ner in the waier of tank. Thsrsaftei', Pheruiai fisd froni ihere. in repiy io the question by ths Couit, she stated thai nobody has tutored her and she is deposina the incident as she has seen. She has been cross-examined at isngih by tite uefence and in the cross-examination, minor contradictions with her eariiei diary staieineni and statement before the yagistrate in regard to ihe weapon crf oifence, ths fact that at that time she was piaying with her brother and sister, have been poinied out. However, she has caiegoricaiiy siaied that her house is adjacenti to the tank, where the deceased was takiuy bath and after hearing the sound of thud, she iooked towards that direction and witnessed the incident. After going thi'ough her diary statement of Ex.D/2 and her staiement unciei' Section 164 of Cr.P.C. of Ex.D/3, we are of the oplnion that there .s no maieriai omission or contradiction in her version before the Court, on the basis of which her testimony couid be doubted. PW-3 Ashok Kurnar has deposed that the deceased vvas stud'i/ing with hirn in Class Viil. One Bhurutai 'was also studying in the same class. The deceased gave two letters written in the pages of copy. Eariier he had destroyed the first letter after reading and second ietter 'without reading. However, he kept the third letter with him and gave the same to Bhuruiai v/hen he asked for it. From faare reading of ietter of Ex.P/1, we find that it is a iove ietter audressed to Ashok Kumar. That apart, PW-2 Horiiai, PW-4 Amardas, PW-14 Chaitram and PW-1 9 Premlal are witnesses of the fact that after hearing about the incident that the appeiiant has mui'dered Jhunibai. ihey went tov»ai'dsthe tank and found the appeilant running av»aywith a ciub towards the viilage side. The appeitant has not offered any expianation for his aforesaid conduct in his staternent under Secuon -TI -i -~?. ^,.? /^L- o ^ i>i^ OY ^f.r'.^. 17. On the basis of above evidence, we ars of the opinion that the trial Court has not committed any iilegaiity or infirmity in piacing impiidt reiiance on the evidence of PW-13 Lachhanbai in amvins at the ^ & ^v conciusion iinat liie orosecution nas estaDlisnea involvement ot me appeiiant in crime in questlon beyond reasonabie doubt. There is no substance in this appeai and ihe same deserves to be dismissed. 18. In the result, the appeai is dismissscl. Juugment of ihs trsai Court convicting and sentencing the appeiianl under Section 302 of iPC is upheid. The appeiiant Is on baii, thersfore, h.s baii bonds are canceiled a!"iu ne is direcisci 10 oe taKen inio cusioay Toru'iwiin 10 unaeryo ine SSjTi.^HC®ilTipOSed OH HiiTi. Sd/- DHIRENDRA,MBHRA Judge Sd/- Manindra Mohan Shrivastava Judge kij