Anup Prasad Kaser v. State of Chhattisgarh

Smt. Savita Tiwari and Shri L.C. Dash, counsel for the appellant. Shri D.K. Gwalre, Govt. Advocate for the State. JUDGWIENT (Deliveredon 18-1-2012) Per T.P. Sharma, J.

1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 4-2-2006 passed by Ist Additional Sessions Judge, Ambikapur, in Sessions Trial No.259 of 2005, whereby and - whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amount murder of his wife Biganibai convicted him under Section 302 of the IPC and sentenced him to undergo imprisonment forlife and to pay fine of Rs. 1000/-, in default of payment of fine to further undergo R.l. for one year. Conviction of the appellant is impugned on the ground that without any iota of evidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecutiph, on fateful day of 17-5-2005 at about

1.00 a.m. at night, appellant along with his wife Biganibai and Ku. Sundari (PW/2) was sleeping in one room. Appellant took out a knife and caused repeated assaults upon his wife Biganibai and caused her instantaneous death. Appellant was suspecting upon her character. The incident was witnessed by PW/2 Ku. Sundari who immediately opened the door of PW/1 Prakash, son of deceased and appellant. Prakash (PW/1) entered into the room of appellant and deceased and caught hold the appellant, who again tried to attack upon PW/1 Prakash. PW/1 Prakash went to Police Station and lodged first information report vide Ex.P/1 and merg vide Ex. P/2. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex.P/4 inquest over the dead body was prepared vide Ex.P/5, spot map was prepared vide Ex.P/2, blood stained soil and plain soil were seized from the spot vide Ex.P/8. Dead body was sent for autopsy to Community Health Centre, Shankargarh where Dr. J.Kujur (PW/6) conducted autopsy vide Ex.P/11 and found the following injuries: i) ii) iii) iv) Incised wound of 1"x1/4" x %" on the lower part of chest; Incisedwoundof 1"x1/4"x1"overchest; tncisedwound of%"x1/4"x1/2" overchest; Punctures were found over left lungs and overliver. The doctor opined that mode of death was due to shock and hemorrhage and death was homicidal in nature.

5. During the course of investigation, appellantwas takeninto custody and he made a disclosure statement of knife and blood stained shirt vide Ex.P/7 and the same were recovered at the instance of the appellant vide Ex.P/9, Patwari prepared spot map vide Ex.P/14.

6. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who in turncommitted the case to the Court of Sessions Judge, Ambikapur. Learned Additional Sessions Judge received the case pn traosfgr for trial, who framed charge under Section 302 of the IPC against the appellant. In order to prove the guilt of the appellant, prosecution examined as many as seven witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearingagainst him and innocence and false implication in crime in question is claimed. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. )tt=S[ji*t(tia|t!|3 %;!IBsaei|l I S if

9. We have heard learned counsel the parties, perused the judgment impugned and record ofthe trial court.

10. Smt. Savita Tiwari and Shri L.G. Dash, learned couhsel for the appellant vehemently argyed that although conviction is based on the evidence ofalleged eye-witness PW/2Ku. Sundari, agedabout 13 years girl, but her evidence does not inspire confidence and trustworthy in the light of evidence of PW/1 Prakash. As per evidence of PW/1 Prakash, there was complete darkness at the time of incident but as per evidence of PW/1 Ku. Sundari, there was light. The evidence of this witness is contradictory to the evidence of PW/1 Prakash. Thus, in the light of her contradictory evidence, conviction ofthe appellant could not be susfained.

11. On the other hand, Shri D.K. Gwalre, learned Govt. Advocate on behalf of the State opposed the appeal and submitted that evidence of eye-witness Ku. Sundari (PW/2)*is sufficient for drawing inference ...;;- II...- that present appellant has cofflrnifted homicidal death of deceased with intent to cause her. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned.

12. In order to appFeciate the arguments advanced by learned counsel forthe parties, we have examined the evidence adduced on behalf ofthe prosecution.

13. In the present case, homicidal death asa result of fatal injuries found over the body of deceased Biganibai has not been substantially disputed on behalf of the appellant. On the other hand, it is also established by the evidenceof Doctor J. Kujur (PW/6) and autopsy report (Ex.P/-11) the death of deceased was homicidal in nature. / '!• : !! -- •.""-;•-:•- '•SY\ •^•^^^ .^ '^:^'!^s. '^ ,,'3$< :t^! "; <3U» sa^'

14. As regards complicity of the appellant crime in question, conviction is based on the evidence of PW/2 Ku. Sundari. As per her evidence, she was sleeping in the same room along with present appellant and deceased Biganibai. Appellant took out a knife and caused repeated assaults over chest of the deceased and then she opened thedoor of PW/1 Prakash, son of the deceased and appellant, who came inside the room and caughthold the appellant. In her cross-examination she specifically deposed that there was light facility and she had seen the incident and at the time of incident she was not sleeping. PW/1 Prakash substantially corrobbrated the evidence bf PW/2 Ku. Sundari and has deposed that on hearing the sound of his mother i.e., Biganibai and after opening the door by Ku. Sundari, he went inside the roomand switch on the light, at that time appellant was sitting over the chest of the deceased. Appellant tried to assault this witness by knife, then he snatched theknife from appellant and roped him. As per his evidence, appellant was suspecting upon the character of deceased i.e., wife of the appellant, therefore, he causedsuchinjuries. The evidence of thiswitness is further corroborated by theevidence of PW/3 Prahlad, who is also present in the same house and heard the sound of the deceased. Defence has cross- examiried these witnesses at length,but has not been able to elicit anything to discredittheir testimonies. Promptly lodged FIR (Ex.P/1), Merg (Ex./P/2) and the evidence of eye-witness PW/2 Ku. Sundari are sufficient to prove the fact that while deceased Biganibai was sleeping at night, appellant caused repeated ihjuries by knifeover vital parts of her body and caused her instantaneous death which is sufficient to prqve the fact that appellant has caused homicidal death of deceased with intent to cause her death. After appreciating the evidence available on record, learned court bel&w has rightly convictedand sentenced the appellant as -aforementioned. ^" Raju

15. On close scrutiny ofthe evidence.we do not find any illegality or infirmity in the judgment of conviction and order of sentence. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Sd/- T.P.Sharma Judge Sd/- R.N.Cbandrakar Judge