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2006 DIGILAW 132 (CHH)

BETICHINGA v. STATE OF C. G.

2006-02-28

DHIRENDRA MISHRA, L.C.BHADOO

body2006
JUDGMENT Shri Dhirendra Mishra, J. :- The appellant has preferred this appeal under Section 374 (2) of the Cr.P.C. as he stands convicted for causing death of Raw a Hidme, convicted under Section 302 of the Indian Penal Code of sentenced to undergo imprisonment for life. The case of the prosecution, in brief, is that on 14.10.1988 Rawa Soma gave information in the Police Chowki Pamed to the effect that on 12. 10. 1988 at about 17.00 hrs. when deceased Rawa Hidme was sitting in front of her house, accused Beti Chinga came in a drunken condition, assaulted the deceased with an axe on her occipital region of head, as a result of which she died on spot and ran away from there. The incident was witnessed by Rawa Mase (PW-4). On the basis of this information FIR (Ex.P-4) was recorded and on the basis of Ex.P-4 Crime No. 26/88 under Section 302 of the I.P.C. was registered against the appellant in the Police Station Golapali. After registering the offence, the investigating Officer proceeded for scene of occurrence, inquest over the dead body of deceased Rawa Hidme was performed in presence of witnesses vide EX.P-5. Dead body was sent for postmortem examination to Primary Health Center, Jagargunda vide EX.P-7 and Dr. S.K.Garg (PW-2) after conduction the autopsy submitted his report vide Ex.P-1. In the postmortem, the doctor (PW-2) Performing autopsy found lacerated wounds at the occipital region of skull, lacerated wound about 2 cm right to wound No. 1, lacerated wound about 3 cm left to the wound No. 1 and bone fractured irregular. Occipital region of brain is ruptured in irregular way. Cause of death according to postmortem report is shock due to inernal haemorrhage. It is homicidal in nature. Blood stained axe was seized from the accused vide Ex.P-8, one old fainted Ghisidb and a gunny bag containing blood stains was seized vide EX.P-9. Seized axe was sent to doctor for his opinion whether the injury present over the person of deceased could be caused by the weapon in question and whether the axe contains human blood. In reply to the queries, the doctor vide his opinion EX.P-2 opined that death was possible by the weapon in question and blood like substance was there in the axe. However, for confirmation the doctor advised that the same be referred to Forensic Science Laboratory for chemical examination. In reply to the queries, the doctor vide his opinion EX.P-2 opined that death was possible by the weapon in question and blood like substance was there in the axe. However, for confirmation the doctor advised that the same be referred to Forensic Science Laboratory for chemical examination. Spot map was got prepared by the Halka Patwari (PW-3) vide EX.P-3. After completing the investigation, charge sheet was filed in the court of learned judicial Magistrate 1st Class, Jagdalpur, who in tum committed the case to learned Sessions Judge, Jadgdalpur and learned Sessions Judge, received the same and transferred for trial. The prosecution examined 7 witnesses in all to establish its case. Statement of accused was recorded under Section 313 of Cr.P.C., in which accused denied the circumstances appearing against him in the prosecution case and pleaded innocence and submitted that he has been falsely implicated. However, the trial court relying upon the statements of eyewitness PW -4 and witnesses PW-5 & PW-6 convicted the appellant as mentioned above. Homicidal death of deceased Rawa Hadme is not in dispute. Even otherwise, from the statement of PW-2 Dr. S.K. Garg, who has conducted the postmortem over the dead body of deceased, found three lacerated wounds over the occipital region of deceased and opined that cause of death is shock due to internal. hemorrhage and the same was homicidal in nature, the fact that death of deceased Rawa Hadme was homicidal in nature is established. The second question to be considered by this Court is whether the prosecution has been able to establish the involvement of appellant in the aforesaid offence. To establish the guilt of appellant the prosecution relied upon the statement of PW -4 Rawa Mase, who is alleged to be the eyewitness of the incident. She has stated in Para-1 of her Statement that accused Beti Chinga assaulted the deceased on the back of her head by axe. She saw Beti Chinga assaulting deceased by axe. The assault was given by the accused near the door. After the assault, blood started oozing from the head and Rawa Hadme died on the spot. She narrated the incident to his husband Somdu & Sarpanch. Incident took place in the evening. She has further stated that why accuse assaulted deceased she does not know. The assault was given by the accused near the door. After the assault, blood started oozing from the head and Rawa Hadme died on the spot. She narrated the incident to his husband Somdu & Sarpanch. Incident took place in the evening. She has further stated that why accuse assaulted deceased she does not know. Learned counsel for the appellant submits that this witness is not an eyewitness of the incident, which is evident from her statement in the cross-examination where she has stated that at the time of incident she was working inside the house and Rawa Hidme was sitting near the front door. After hearing the shout of Raw a Hidme she came out and saw that Rawa Hidme had sustained axe injury over her head and the blood was oozing of her head, she died while writhing. When she came out the person assaulting Rawa Hidme had fled from there. She has denied the suggestion of defence that Rawa Hidme wanted to make daughter-in-law the wife of appellant Beti Chinga. However, she admitted that there was no dispute between Rawa Hidme & Beti Chinga. In the cross-examination, she has further stated that after incident she went to her father-in-law Soma & Sarpanch and told them that someone has fled after killing Rawa Hidme. From the statement given in the cross-examination, it is evident that she was not the eyewitness to the incident. It is further argued that PW-5 Rawa Somdu, who has stated the Rawa Mase informed him that Beti Chinga has assaulted the deceased by1in axe over her head and thereafter fled from the scene. This witness has also stated in his cross-examination that Mase to told him that when the accused assaulted the deceased she was inside the house and she further told that when she came out Hidme was dead and the person assaulted her had fled from the place. PW -6 Madvi Modiya has also deposed in the similar lines as PW -5, however, he has made material improvements in his statement to the effect that mase came to his house and informed that Chinga has killed Hidme. He has further stated that why this part of his statement is not in the diary statement EX.D-1 he does not know. He has further stated that why this part of his statement is not in the diary statement EX.D-1 he does not know. It is further argued that PW -6 who is the witness of seizure of axe from the accused also, has stated that he is not aware of as to what was written in the seizure memo and when he reached in the police station he found the police personnel were having axe. There for the alleged seizure of axe from the appellant is also doubtful and in view of the aforesaid circumstances, the prosecution has not been able to establish the offence against the accused beyond reasonable doubts. On the other hand, learned counsel for the State supports the judgment passed by the trial court and submits that minor discrepancies in the statement of PW -4 Rawa Mase, who is a rustic tribal is of no consequence, as PW -4 has categorically stated in Para-l of her statement that she saw the appellant assaulting the deceased by an axe. We have heard learned counsel for the parties, perused the impugned judgment as also the statements of witnesses and material available on record. So far as the statement of PW -4 Rawa Mase, Who is an alleged eye witness of the incident, is concerned, from perusal of Paras 2 & 3 of her statement wherein she has stated that when she came out, she found that deceased Rawa Hidme was having injuries over her head and she died while writhing and by the time she came out the person assaulting the deceased had already fled from there and in Para-3 she has further stated that after the incident she went to Soma & Sarpanch and informed them that some one has fled after killing Hidme. From this statement of PW -4, we are of the considered opinion that the presence of this witness at the time of incident is doubtful. The other two witnesses, who corroborate the statement of PW -4, are the witnesses of the fact that PW -4 informed them that the appellant assaulted the deceased by an axe over her head. From this statement of PW -4, we are of the considered opinion that the presence of this witness at the time of incident is doubtful. The other two witnesses, who corroborate the statement of PW -4, are the witnesses of the fact that PW -4 informed them that the appellant assaulted the deceased by an axe over her head. Since we are of the opinion that the count given by PW -4 in Para-l of her statement is doubtful in light of her statement in Para 2 & 3, therefore, the statement of PW -5 & PW -6, who were hear say witnesses, loses its importance. So far as the seizure of axe from the appellant is concerned, from the statement ofPW-6 we are of the considered opinion that the prosecution has not been able to establish the seizure of axe from the accused beyond reasonable doubts. In the aforesaid circumstances the finding of the trial court on the basis of the statement of PW -4, PW -5 & PW -6 that the appellant assaulted the deceased by an axe over her head is erroneous, the same is based on the improper appreciation of evidence available on record and liable to be set aside. Accordingly, we set aside the finding of the trial court convicting the appellant under Section 302 of the IPC after holding guilty for causing death of deceased Rawa Hidme and sentencing him to undergo imprisonment for life. As a result, the instant appeal succeeds and the appellant Beti Chinga is acquitted of all the charges and we direct that he be set at liberty forthwith, if he is not required in connection with any other offence. Appeal Allowed.