^ HIGH COURT OFCHHATTISGARH. BILASPUR CORAM: Hon'ble ShriRaieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. <. Criminal Appeal No. 744 of 2005 Silvester Minz Vs. State of Chhattisgarh JUDGMENT /^. For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ^ Sd/- Chief Justice Post for Judgment :2^/09/2008^ Sd/- Sunil Kumar Sinha Judge (y^. HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J^ & Hon'ble Shri Sunil Kumar Sinha. J. Criminal Appeal No. 744 of 2005 APPELLANT RESPONDENT Silvester Minz Age- 49 yrs. S/o. Atwa @ Philiph Minz, R/o. Village- Kanchi, Police Chowki-Asta, Police Station - Sanna, Distt. Jashpur (C.G.) Versus State of Chhattisgarh Through the station house officer, Police station - Sanna, Distt.- Jashpur (Appeal under Section 374 (21 of The Code of Criminal Procedure) Appearance: Mr. Anant Bajpai, Counsel for the appellant. Mr. Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (2^.09.2008) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant- Silvester Minz stands convicted under Section 302 I.P.C. for committing murder of his wife and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default of payment of fine to further undergo additional imprisonment for 5 months, by the Second Additional Sessrons Judge (FTC), Jashpurnagar in Sessions Trial No. 167/2001 on 21st of January, 2002. g j \'%J/ •:^^^^"" Criminal Appeal No. 744 of2005 (2) The case of the prosecution is that in the intervening night of 29.7.2001 & 30.7.2001, the appellant, hiswife Phoolkeria (since deceased), his sons Anoop, Anil, Arvind (PW-4) and daughter- Archana (PW-5) all were present in their house. Appellant- Silvester, his wife Foolkeria and son Arvind were sleeping in one room, whereas, Archana , Anoop & Anil were sleeping in different rooms. The appellant's room was bolted from inside. The allegations are that at about 1.30 - 2.00 a.m., the appellant gave Tangia blow on the left frontal region of his wife, due to which, she died instantaneously. This was witnessed by Arvind Minz (PW-4). When they made hue and cry, the villagers including the elder brother of the appellant Gregori (PW-1) reached there. They saw the dead body of the deceased lying on the pool of blood having an injury on the left frontal region. They also saw Tangia having blood stains on it. When the villager asked to the appellant about all this, he said that he has killed his wife. (3) In the morning, at about 9.10 a.m., the matter was reported to the concerned police station by the elder brother of the appellant, on which, the First Information Report (Ex.-P/1) was registered. Merg intimation was also registered under Ex.-P/2. The Investigating officer reached to the scene of occurrence, prepared inquest (Ex.- P/5) on the body of the deceased and the dead body was sent for its postmortem to P.H.C. Manora under Ex.-P/10, where the postmortem examination was conducted by Dr. R.S. Pekra (PW-10), who prepared his report under Ex.-P/13. He noticed that there was a lacerated wound on the left frontal region in size of 8 inch x 3 inch 1 Criminal Aweal No. 744 of2005 having blood clots and there were fractures of left frontal bone, left maxilla, ethmoidal and nasal bone. The bones were fractured in multiple pieces. The Autopsy Surgeon opined that the cause of death was coma due to fracture of skull bone and rupture of brain, which was homicidal in nature. (4) In further investigation, the blood stained soil, plainsoil and a piece of bone were seized from the place of occurrence under Ex.- P/6. Blood stained Tangia having adhered with a piece of bone on its blunt side was also seized from the place of occurrence under Ex.-P/7. The seized articles were sent for their chemical examination to the F.S.L. Raipur. (5) After completion of usual investigation, the charge-sheet was filed in the Court of Chief Judicial Magistrate, Jashpurnagar, who in turn committed the matter to the Court of concerned Sessions Judge, from where, it was received on transfer by the Second Additional Sessions Judge (FTC) Jashpurnagar, who conducted the trial and convicted and sentenced the appellant as aforementioned. (6) The conviction of the appellant is based upon the testimony of child witness Arvind Minz (PW-4) and other attaining circumstances. (7) Mr. Anant Bajpai, learned counsel for the appellant, has not disputed the homicidal death of the deceased. He argued that the testimony of the child witness is not reliable, therefore, the conviction cannot be sustained. He also argued that even if the complicity of the appellant is proved in crime in question, his act would fall within '^1 Criminal Appeal No. 744 of2005 the exception of Section 300 I.P.C. and the offence u/s 302 I.P.C. would not be made out. (8) On the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate, for the State, opposed these arguments and supported the judgment passed by the Sessions Court. (9) We have heard the learned counsel for the parties at length and have also perused the records of the sessions court. (10) PW-4, Arvind Minz, is the son of the appellant. Hewas aged about 10 years on the date of his court evidence, which was recorded on 8.1.2002. He deposed that "On the fateful night, he was sleeping along with his mother and father. His brother Anil was sleeping in a different house. His brother-Anoop and sister-Archana were sleeping in different rooms of the same house, where the incident occurred. He woke up at once, when he received sprinkles of blood-drops on his face. He saw that his mother was lying on the pool of blood. He clearly deposed that his father had assaulted his mother by the Tangia. When he started weeping, his sister and brothers came there". Archana (PW-5) was aged about 11 years on the date of her evidence before the Court on 8.1.2002. She deposed that "On the fateful night, Arvind was sleeping along with mother and father in a room in their house. In the night, at about 1.00 - 2.00 a.m., she heard cries of Arvind. When she went to their room, she saw the dead body of her mother. She had received injury on her face. Her,father was also standing there". Other witnesses namely- Laurance Minz (PW-6), Polikar Tigga (PW-3) & Martin (PW-2) have /y3^'\ ;:9!ayj '%^^.y ^. Criminal Appeal No. 744 of 2005 also stated in similar fashion. It comes in the evidence of Martin (PW-2) that when he had gone to the house of the appellant, Arvind had told him that his mother has been assaulted by Tangia by his father. Gregori (PW-1) is elder brother of the appellant. Hedeposed that "When he heard hue and cry in the house of the appellant, he went there and saw the dead body of the deceased. He had seen injury on the face of the deceased, even brain matter had come out. He had seen a Tangia having blood stains, which was lying there and had also seen the blood stains on the wall of the room. Arvind (PW-4), Anoop & Archana (PW-5) were also present there. The appellant was also present there. He had asked to the appellant as to why he killed the deceased, on which, the appellant gave no explanation and he kept quiet. He had reported the matter to the concerned police station, on which, the F.1.R. Ex.-P/1 was registered". The contents of the F.I.R. support the version of this witness. (11) These witnesses were put to cross examination buta formal cross examination was done and nothing adverse could be elicited by the defence, on which, either the testimonies of these witness may be doubted or it may be inferred that they are falsely implicating the appellant. Arvind (PW-4) is son of the appellant. Why he will falsely implicate his father. No reasons have been brought on record to generate a theory of false implication by the witnesses. Even, the appellant, who was present in the house, has not offered any explanation regarding the murder of the deceased in his house in the night, when only 3 persons i.e. the appellant himself, the y^ "x'l Criminal Appeal No. 744 of2005 deceased and his minor son were present in the room and the room was bolted from inside. In appreciation of evidence of these witnesses, we find that the complicity of the appellant in crime in question was established by the prosecution beyond the reasonable doubt. (12) As far as thearguments regarding the offence lessor than murder is concerned, the same cannot be entertained. The deceased was dealt with Tangia, using its blunt side choosing the mostvital part of her body resulting into fractures offrontal, maxilla & ethmoidal bone into multiple pieces. Even a piece of bone was seized from the place of occurrence and the Tangia was also seized mounted with a piece of bone on its blunt side. The brain matter had also come out. This all show that the appellant intended to cause murder of his wife and with such intention and knowledge, he gave Tangia blow with a great intensity, though from its blunt side, which resulted into instantaneous death ofthe deceased. (13) Looking to the nature of injury sustained by the deceased, in our considered opinion, the appellant was responsible for commission of an offence which cannot be lessor than one punishable u/s 302 ofthe I.P.C. (14) We do not find any merit in the appeal, the same deserves to be dismissed and is accordingly dismissed. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge vatti