WW, ®?i H1 6‘, W @ WdT m H‘L 200 Wm (W) WWW WWWIWW amimm HIGH COURT OF CH HATTISGARH AT BILASPUR DIVISION BENCH: HON. SH RI DHIRENDRA MISHRA & HGI‘I. SH RI T.P. SHARNIA, JJ CRIMINAL APP'EAL NO. 230 OF 2002 I APPELLANT LgJajl ‘ A Respondent « Present: Shri V.C. Ottahrvar, cou Shii Rakesh Jha, Dy. C 01w (11th Dhirendra Mishra, J This cm'minal appeal , conviction and order of sent: in S.T. No. 228/200 1 wherebj Judge, Bilaspur has convict: IPC and sentenced him wi 54 years, R,’ o Police Station and Tahsil—Masturi, District Bdaspur. Versus‘ r State Po Station— MasturL District Bilaspur (cc) of Chhattisgarh through Station Henge. Cfficer, nsel for annellant. ‘rovt. Advocate for the State. L JUDGMENT Febmary 2008) 14‘ an ~. nut, Bhagirathi, S/o Govind, Aged about Village—Masturi, Is directed against the judgment of ince dated 29th January 2002 passed r the learned V] Additional Sessions d the appellant under Section 302 of th life imprisonment pay a fine of WW,W@W Wm m zoo mm (W) WWW Wm WW émiffmm v2, Rs.1,000/ - and in default thsmof, to undergo additional R for six months. 2. Case of The prosecution, in brief, is that deceased Jethu had illicit relationship with the wife of appellant and because of this the of 29th Apn‘l and 30th Apn‘l 2001 conimitted murder of Jethu, wh was sleeping outside his home at the time of incident. The incid nt was witnessed by wife of the i V ’appellant in the intervening nig deceased damely Kejabai. 3. On the infonnation of ram, son of the deceased, First information Report of EXP] 1 wa registered on 30.4.2001 at about 6.15 am. Merg intimation wa also registered on the basis of information given by Puniram v e EXP/2. The police proceeded for the scene of occurrence, p pared inquest over person of the deceased vide EXP] 10 and th fter sent the dead body of Jethu ‘» for autopsy to Community H alth Center, Masturi Where Dr. Hemant DiXit (PW-8) conducted ostmortem and gave his report of EXP/7. On the memorandum ( X.P,’ 3) of the accused the weapon of oh‘ence - bloodstained chop , used for cutting the paddy—hay, bloodstained gamchcha ‘and bloodstained jute sack were n into possession vide Ex.P]4. Spot, map was got prepared by ‘Halka Patwari vide EXP/5. The dent including the bloodstained ex ,7 rbedding of the deceased were taken into possession Vide EX.P‘I’11. p bloodstained white baniyan, t e articles lving on the place of GRH €1‘ —<v~v I i e a i ' Wm an 200 WW,W,W mm (W) f W WWW mm m Dr. Hemant Dixit (PW-8), in v and opinad the cause of d€ath over vital part of ths body Le‘ nature. homicidal dea%h of Jei - (i) Incised wounds g in numbers, clot were in the size o are united and ex Incieed wound at‘ Incised wound OJ nox/zx/zcm I 1 (ii) (iii) \ Fr lower side at back side of the neck, 'hich he has noticed followed injuries .as excessive bleeding due to injuries neck and the death was homicidal in hu is established. On external examinatirgg rresent over left side of the neck, four ted blood was there, all the injuries ‘5to 10cmx’z’2 toQcm,depthofall {tending upto cervical verteb rd i tight side of neck, 3 x 1/2 X 1/2 cm (vi) (vii) (viii Incised wound o er light side of scalp, 4 x 1/? X 1/2' cm Incised Wound o er frontal area of scalp, 1 1/2 x 1/2 x V2 Cm ) In all the above ' juries clotted blood was present. On internal examination: Brain was pale, trachc was cut up to moum, both the lungs were pale, both the c ambers of heart were empty) large GRPRJ g Fs/é i Incised wound o er left thigh, 3 x 1/2 X 1/2 cm W m m 20% 31mm (W) minimum . mmnwm semm eye (iv) Incised wound left clavicle alea (below), 3 X 1 X 1 cm (v) Incised wound ‘ er right shoulder front, 3 X 1/2 x V2 cm, WW, m,W vgssels of both side of cut from front side, stomach 6a intostines aJ ‘ r 8. Learned counsel for the I a fthe appellant is solely based who‘ is wife of the deceased. witness, it is contended that éhief has ‘stated that she was sleeping inside her house whereas her husband was sleeping outside, her two sons Vinod and Manoj were sleeping in their rooms I the neck wcre cut, food<pipc was half undigested food was thcrc in the 1d liver, spleen (Sr, kidney were pale. appellant submits that conviction of on the statement of Kejabai (PW- 1), Referring to the statement of this this Witness in her examination-in- with their soouses. She woke up on healing the shouts of her husband and saw that he was being assaulted by four persons wi‘h chopper and axe. She has named appellant Bhagirathi, his son Laxaman. his son—in-law Ramswaroop and his nephew Durga as the persons who were assaulting her husband. She has also described the respective weapons held by each of the accused persons. However, none of the above four assailants were prosecuted for commission of the above offence except Bhagira‘hi. He further argued that the First Information Report of EXP/T. lodged by PW-2 Puniram does not mention the name of appelant Bhagirathi or other assailants, though PW-2 in paragraph-6 of his deposition has admitted that V before going to lodge report he had visited the place of incident and at that time all the members of his family including his mother were present there, all of them had asked him to lodge the report Wm Hi 200 Wm (13W) WWW tandem waisted“ mWdh’éW handmade PS‘e ‘ WW, m,W 4F, and onlv thereafter. h€ went to palagraph-Q has also admitted she could not narrate about the incident to her sons. who were In the morning she was woken up sleeping in the adjacent rooms. by her daughter—in-law who informed her that her husband has fbeen killed and thereafter she narrated about the incident to her at she, had seen four peisons 11y thereafter, Vinod and Puniram ‘, non-mentioning of name of the )ns in the First Information Report u of Kejabai. It was further argued ed the report, has also stated that when he went to police station tlo lodge report, at that time the T.I. narrated about the incident to the .ey told hini that his report will be of Station House Officer. After onshbles informed him of the ainant and thereafter. T.I. came to Jot and then asked him to come to report could be lodged. He lodged the report against unidentified persons. sons Puniram and Vinod t1] Essaultjng‘ her husband and 01 went to ledge report. Howeve: appellant o1" other accused pers‘ cast sexious doubt on The versio that the complainant, who lodg was not present there, then he constables plesent thele and fl registered onlv after the aniv: arrival of the S.H.O. the C information given by the compl the place of incident, saw the s nolice station and only then his 9. *"*“**. ‘®‘—-~‘ Ilodge the report. PW-l Kejabai in that since she was unconscious On the other hand, learned counsel for the State supported impugned judgment of the trial Court. He also submitted that art from the evidence of PW-t Kejabai, PW—4 Nagin Bai has also W m ‘ai 200 3mm (W) WWW WW§WW /< %5a1'f:rmaném @ Wm “a1 200 Wm (W) mmfw% mm m mwm Fr’,‘ WWW WW QEWW \hf10. corroborated her statement in matsn'al particulars as shs has stated that she heard the shouts of Jethu, she got frightened and Ls going towards the road from the thereafter she saw four persol thrashing fleld ofJethu. 2 We have heard learned counsel for both the parties and hav perused the Iecord as also the at is based on the solitary testimony yewitness of the incident. She has .-chief that she was sleeping inside incident Whereas her husband was sleeping outside, her two sons namely Vinod and Manoj were sleeping in their respective roo ms with their spouses. Her husband was sleeping at a distance of only 10- 15 feet from her. In the night she heald the shouts of her husband, she woke up and saw that four persons were assaulting her husband with chopper and axe. She Conyiction of the appella of PW-l Kejabai, Who is an e denosed in her examination-i1: her home in the night of the 11. identified Bhagirathi, Ramswaroon and his nephew holding chopper, used for cu ting paddy-hay, his son—in-law was holding axe, his son Laxaman ad caught the head of her husband whereas nephew of Bhagirathi had caught his leg. After committing marpeet all of them fled from ere. Having witnessed the incident, she became unconscious. He husband had died. As long as she was conscious. no outsider ame there at the time of incident. his son Laxaman‘ son-in-law Durga as assailants. Bhagirathi was mpugned judgment. e WEEK mm, §?i W (6", mm 111 200 mmm mmawm %7ai1%m3n€¥r fyrr Nsck of thé déceaS€d was fuHV cut and onlV skin remainad to be cut. He had also sustained and legs by axe. She has fu had illicit relationship with 11‘ Vears and on account of this ‘ a f In the cross-examination, sh‘ by hsr daughter-in-law, who kilkd and subsequsn’dy, s] $ Punimm and Vinod‘ who wex . thereafter. 12. It is not in disnute tha unidentified persons. PW-Z t the report has been lodged against Puniram, the complainant, has also stated that after hearing about the incident he reached the place of incident. where he met all solitary eyewitness Kejabai a report as suggested by the o‘ of above two witnesses is co the eyewitness account given on hearing the shouts of her his familv members including the ‘nd only thereafter, he went to lodge If the evidence 'her mily members. nsidered, it is verv dihicult to accept by Kejabai (PW— 1) that she woke up husband and saw the appellant and his three associates assaulting her husband. Taking‘ into consideration the fact that weapons of oh‘ence held by a1 themt the contention that therefone. could not disclose mm (W) incised injuries over his chest, hand Lther stated that her husband Jethu Le wife of appellant for the last 17-18 he annellant murdered her husband. a has stated that she was woken up informedwthat her husband has been 1e narrated about the incident to Lt to lodge report in the police station she has graphically detailed the [the assailants and the role played by she fell unconscious thereafter and about the incident immediatelv to her WW, ®?l H’ <3,W @ WWW ammm’ WWW rt?” ‘ WW§E§W $a’mm sons, who wsre pmsent il improbable. That apart, in ‘rh her daughter—m-law, in her WEnt to lodg€ report, howav abbellant in the First Inform iiime familv members of the identity offhe accused person 13‘. So fal- as evidence of P onlv a WitnesQs of the fact tha and thereafter. she saw fou thrashingfleld of Jethu towar of the annellant in her state: evidence of the above Witness that version of Kejabai (PVR embellishment, it runs coun L the house, also appeals highly 3 morning after she was woken uu bv presence the compiainant Puniram er, non-mentioning of name of the ration Report indicates that at that deceased were clueless about the S. W—4 Nagin Bai is concerned, she is t she heard the shouts of Jethuram ‘- r persons running away from the is the road. There is n0 mentioning nent. In the overall analvsis of the es, we are of the considered opinion ’—1) is full of improbabilities and ter to the case of prosecution and therefore, her version does not inspire conhdence. The trial Court was not justified in basing solitarv testimonv of evewitnes conviction of the appellant on the 14. For the aforesaid reasm that the prosecution has faik crime in question based on th v 1 Kejabai and the trial Court s Kejabai. is, we are of the considered opinion ,d to prove guilt of the appellant in e evidence of alleged eyewitness PW- was not justified in convicting the ' yJ t Wm m 200 mm (new!) W 3%a:mam&L§ HW§ mm ¥FL 200 m@wuww ($*§ay) W WWW ,4o_ 'WWW mm WWiwm %aif‘aq3n%¥1 i appdlant under Section 302 : 1 imprisonment and tine of Rs. 1, & ‘ 15. In the result, the gp appellant under Section 302 c ago set aside. He is acquitted Lto be set at liberty forthwith if Tot required in any other case. v Sd/- ynemmmmnAhm$t“R E Judge $ x“ G §7 )f IPC and sentencing him with life 000/a peal succeeds. Conviction of the f IPC and sentence ’passed thereon, of the above charge. He is directed >7 e Sd/— T.P. Sharma Judge L?I