.-^'^L • ^"^i-.. s?"A.; X HIGHCOURT €)FCHHATTISGARH AT BILASPUR DIVISIONBENCH ^- CORAM: HON'BLEMR. T.P. SHARMA & HON'BLEMR. RANGNATHCHANDRAKAR. JJ. ^ APPELLANT: ACCUSED W (INJAIL) CRIMINALAPPEAL N0.229/2007 FAGUA RAM SAHU S/0 TULA 'RAM SAHU, AGE: 58, R/0 VILLAGE BADARA-THAKUR, P. S. PATHRIYA, DIST, BILASPUR. •><• VERSUS RESPONDENT: PROSECUTION STATE . OF' CHHA.TTISGARH, THRGH: P.S. PATHRIYA, DIST. BILASPUR.. /'. CRIMINA^AEPEALUNDERSECTION374(2tOFTHE CODE OF CRIMINAL'PROeEDURE, 1973. Present:- Mr. AmiyakaiitTiVi'ari, Advocate forthe.appellant. Ms. Madhu Nisna Singh, P.L. for the State/respondent. ORAL-JUDGEMENT (Passedon 01/08/2011) The followiiigjudgment ofthe Court was passed hy TJ'. Sharma. J:- 1. Challenge in this appeal is to the judgment of conviction and.order of sentence dated 22/1/2007 passed by Second Addifional Sessions Judge, F.T.C. Mungeli,_Districf Bilaspur C.G. in Sess'ions Trial No. 236/2005 wKereby and where under after holding the appellarit guilty for the commission of bffence of culpable homicide amounfing to murder of Amrikabai, convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and .^A.. '"'s. f/s~^^:h i,^ijy' '^-. vssiy fine of Rs. 500/-, in default of payment of fine amount additional rigorous imprisonment for 3 months. .Conviction is impugned on the ground that without any iofa of evidence sufficient for conviction of appellant, Court below has convicted and sentenced the appellant as aforementioned and thereby comntitted an illegality. As per case of the prosecution, on 15/4/2005 at about 8.30 A.M. on account of previous enmity while Amrikabai (sirice deceased) was going towards field and she was carryingwater, PW1 Kartik Kumar Mishrawas also accompanied with his keep wife Amrikabai then appellant assaulted Amrikabai by stick and caused repeated assault to her, he shouted for help but no person came to intervene thereafter he informed Rameshwar V.aishnav SE Poshan Vaishnav but they were ndt came for their help then Kartik Kumar Mishra took injyred Amrikabai near pond and provided water where Kotwar came thereafter Amrikabai died. PW1 Kartik Kumar Mishra went to the Police Oufpost Kaket, Police Station Pathriya and lodged First Information Report vide Ex. P-1. Marg was recorded vide Exs. P-2 & P-8. Numbery First Information Report was lodged vide Ex. P-9. Investigating Officer left for scene of occurrence and after summoning the witne'sses vide Ex. P-3, inquest over the dead body of Amrikabai was •-^•^-..: \- " •^te., "- ^?. . .•;;• A° .-/ prepared vide Ex. P-4. Dead body ofAmrikabai was sent for autopsy to Community Health Center Pathriya vide Ex. P-5A where PW13 Dr. Anand Singh Manjhi . conducted autopsy vide Ex. P-5 and found following injunes:- . . (i) Lacerated wound over left side of the forehead of 1.5 x 1 c.m. . • (ii) Lacerated wound over right side of the forehead of 1.5 x 1 c.m. (lii) Contusion over forehead of l" x l". (iv) 15 contusions over back of 5" x 2" & 7" x 2" in size. (v) Contusion oyer left buttock of 1" x l". (vi) Gontusion over leff leg of4"x l". (vii) Contusion over ankle joint of 3" x l". (viii) Contusion over left leg pf 2" x l". (ix) .Contusion over right hand of 3" x l". (x) Abrasion over right elbow of 2 x 1 c.m. (xi) Ruptureofspleen. Mode of death was hypovolamic shock and death was homicidal in nature. 4. Sealed cloths of deceased Amrikabai was seized vide Ex. P-7. Appellant was taken in to custody, he made •discloser statement of fuel wood vide Ex. P-10, same was recovered at his instahce vide Ex. P-11. Blood stained and plain soil, one axe, pair of Chappal seized from the spot vide Ex. P-12. Spot Map Was prepared . vide Ex. P-15. Seized articles were sent for chemical examination vide Ex. P-16. Pre'sence of blood over fuel /y ^,.?1 '•'••'i K-- ^ ' •^' .^7sa"'Bafc^ ?yfe. "'^ wood recovered from fhe appellant was confirmed vide Ex. P-13. . 5. Statements of the.witnesses'were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code'). After completibn of the investigation charge sheet was filed before the Judicial Magistrate First Class, Mungeli who in turn comraitted the case to the Court -of Sessions, Bilaspur from where learn^d Second Additional Sessions Judge, F.T.C. Mungeli, District Bilaspur C.G. has received the case on transfer for trial. , 6. In order to prove the guilt of the appellant/accused prosecution examined as many as 20 witnesses. Accused/appellant was examined under Section 313 of the.Code where he denied the circumstanGes appearin^ agairist hirrt; ihnocency and false implieation in crime in question is claimed. Appellant has taken defence of alibi and he has examined defence witnesses DW1 Chandrikabai and DW2 Fagu Sahu to proofenmity of appellant with PW1 Kartik Kumar Mishra and plea of alibi. 7. After affording an opportunity ofhearing to the pgu-ties, learned Second Additional Sessions Judge, F.T.C. Mungeli, District Bilaspur C.G. has convicted and y sentencedthe appellant as aforementioned. •;s' 9. 10. 11. Mr. Amiyakant Tiwari, learned counsel for the appellant and Ms. Madhu Nisha Singh, P.L. for the State/respondent are heard. Judgment impugned and record ofthe Court below perused. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on the evidence of PW1 Kartik Kumar Mishra who i? having inimical terms with appellant does not inspire confidence 8s trustworthy and solitary evidenee of PW1 Kartik Kuraar Mishra wlthout further corroboration is not safe to rely therefore, conviction ofthe appellant is not sustainable uhderthe law. . On the other hand, learned Counsel for the respondent/Stafe opposed the appeal and argued that evidence. of PW1 Kartik Kumar Mishra is well corroborated by the evidence of .PW2 Poshan @ Dileshwar Vaishnav 8s PW3 Rameshwar Das Vaishnav are sufficient for drawing definite conclusion that only appellant has caused homicidal death ofAmrikabai and Court below has rightly convicted and sentenced the appellant as aforementioned. Jn ord.er to appreeiate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf oftheprosecution. Q I'G :^.— s^ 12. In 'the present case, homietdal death as a result of rnultiRle fatal inj'u.ries found over, the body of deeeased Arankabai.' Kas not .been. substantially disguted :on behalf of J;he appellant: on the other Kand, otherwise also established by the •eyid.ence-of PW,13 Dr.; Anahd Singh.Manjhi:and-a;i.itQpsyyreportEx. P-5 and •death.of Amrikahai'was Homicidal in riature. . • . • 13. As ;reg^ds 'tKe eomplicA^ • oC appellant u-i 'crime ,in quesH.ait, convicttoii of the.^F>eUant;is substa^tiatly . ^based on thg %videnGe o£PWi Kartik; Kum.ar Mishra, ayeged'pararnflunt 'ofi'decea^ed ^nirikabai,,;as per^^^K evidencp, 'at the time: ;of iriciiden't whfle. : bis' I'keep . ^Am.nkabai was' goi.n.g'^Owards •fi.eld with'water, ^he -was aGcornpanied . her/^' ^vMen 'they w Dechiyan^ .(plaeer wtiere :cattle^ are. ,used to '•Galfeet) appellairt who w^ assaulfed .Anirikabai^ abruptly by stick and ' caused ',. 'multiple-injuries' t&; hep,. lie^ shoufed .fo teelp but, |no ; •. person''.canie to.interyene ^as3J^Ke'was;ndt\ii^^ weapoa'thei?efore,1 he';^was''nQlt.;in.'p8^^ he called Raraesl'i'war.sBasj;!' ^aisUna»..';& Ij'oshan •-.. ^- Dileshwar Vmshn:a^.^Ko^^h&usesrwere:fnear,&ei|plalG^^ of incident.tfaen Po^haii Dileshwar^ tG^xsa& ahd VaisHnay lie^is ribt?lj'L^i3G>s adytseH^fo llglp' • ,C!fijj .Keitwa^' ;^a|6 ti:h'ie:^':lP©shein ''"-^' '-"r- '•-• '•^•: Si-»s;ySa£aS T?.?^^" .-;"&^s ^ ^-3it" II // -^ ^aK^ !..4-i.i,4. 14. 15. Vaishnav was' not in position to "walk on aGcount pf fractyre ofhis leg..Ranieshwar Das Vaishnav also told him that alone he is not in^pQsition.to help then Kartik. Ktimar Mishra touk in|ured;.Arnnkabai near pond.and provifled : '.wafer wliere •Kotwar — eame : thereafter .Amrikabai'died then he'went to the Police Sfation and lodged First Inform.ation - Report Ex. P-1 85 'Marg intimatiQn Exs. P-2 85 P-8: Defence •has cross-exattiirted this wifness.at lengtfa.Btith been, able to elt6it anything iti his: cross-examina.tion to discredit .NS testiinony.: ffis' evidence :;is^ weU corr^ by the eyideriGe^oi' FW2 ^Poshara.®,Dilesl-rwar VaisHnav Ss PW3 Rameshwar Das Vaishrtav.'who .t'laye'depQsed-fhat Ihey have 'heard the' sound ;6f Kartik Kumar Mishra but PosIiEin @ Dileshwar 'V'aishnav was nat^ .in positipn^ to walk, .Kart.ilf^Kumar NIishra. fQtd thetn: that .appellant^ wasassaultinghiswife.Arnnkahai..,'' . As . regarcts the.'evidence &f;.defence witness D'Wl: CHandrikaBai & ©W2'iEI<>agu'Sa]au:is Goncerned,^^^ their evicteEtee,'relatl:offi©fappellant and Kartik ^Kum.a.r1 Mishra ^wei-e. iio^.•eQrdiaI:. ^Kartife. Kuinar Mishra was; arrested in; ease;oT;7illK^pos^|sicm of:<3a^a.'but^^ fact is not releyan^forj'ujstdeeisian.cif.^ftisease. • , ':: '.i' -'s. .•'•'^:..:.":r'.": ^". ••; :•.•.';.:•'::• ./' ' :.'; ;•;•'.' . -.'/•."•:'••'. '/..:- :. ,.-.^"' As^ Tegards: :the'l.c^estiont..erf'..^ appeHant';']|tas^aused^s;n3^S^Ie^i^ '€-: v-nKsW' ^i^s^^'.^'."^. v^^yw ^VS:^ fl. ^-^^^- •",rs1 •~:y 16. 17. 25 injuries including 15 'contusions oflong size over the back 8s rupture of spleen shpws raerciless assault caused by appellant to Amrikabai and eviden'ce of EW'l Kartik. 'Ku.mar Mishra is well cori-oborated, by the evidence of PW2 Poshan: @.^Dileshwar Vai&hhay. & PW3 Ram.eshwar Das Yaishnav. These fact and evidenee are sufficient fbr drawfng definite conclusioh fhat only appellant has Caused. ItOiTiiGKla-l deafh of Arunkabai wifhintenf fo.cause her'death.. . .. , After apprectating the evidence . avai.lable on record, • learned Second Addifional SessiQns Judge, :.P;T,C. Mungeli, District Bilaspur C.G. has rightly convicted .artd sentenced fhe stppellant as aforementionect. Goriyiction: and sentence.of tbe appiellant is based ort' credible, clinching and legal evidence, sustainable under tfae^aw; :,: ' ' •'' ' ••• ; : : •; • '•• .'. 1' ^ On close scrutiny of the evidence, we do not find 'any illegalityor irifirmity.in'thecQnyiGfiprt and sentenee af; the appellant. Gonsgquently, -crttninal appeal i& :devbiei of merifs and same is liable; to ,be dismtssed ^and is hereby dismissed. T.P.Shiarma Judge '-^ Sd'- R.N. C4andrakar Judge