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2009 DIGILAW 278 (CHH)

MEHETTAR SINGH v. STATE OF C. G.

2009-10-27

DHIRENDRA MISHRA, R.N.CHANDRAKAR

body2009
JUDGMENT As per Hon'ble Shri R.N. Chandrakar, J. :- 1. The appellant has preferred this criminal appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 19-11-2001 passed by the Additional Sessions Judge, Korba, in Sessions Trial No. 194 of 1999, whereby the appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine to undergo additional SI for two months for committing homicidal death of Manglibai and sentenced to undergo life imprisonment and to pay fine of Rs.500/-, in default of payment of fine to further undergo SI for two months for committing homicidal death of Lilabai. Both the sentences are directed to run concurrently. 2. The case of the prosecution, in brief, is that on 26-2-1999 at about 11 a.m. the door of the house of the accused/appellant was closed from inside and the daughter of accused was weeping in the house. Hearing the noise of weeping, Sukh Singh (PW/15), brother of the accused/appellant knocked at the door but none responded. Thereafter, Sukh Singh went to the village site and called Sitaram Kanwar (PW /13) Mohitram, Garib Singh (PW 18), Garud Singh (PW 15) Bandhak Singh (PW /14), Baliram (PW 14) and Kotwar Ajar Das (PW /10). They broke the door of the house of the appellant, entered in the house and saw Mangli Bai, Lila Bai and Savita Bai lying dead on the ground. They saw injuries on their bodies and a blood stained axe lying on the spot. They caught the accused and came out from the house with him. Garud Singh (PW/5) lodged the report (Ex.P/16) of the incident at Police Station, Kartala. 3. During investigation, morgue intimations Ex.P/13, Ex.P/14 and Ex.P/15 were recorded and inquest (Ex. P/11, Ex.P/12 and Ex.P/10) over the dead bodies of Mangli Bai, Lila and Savita Bai were prepared respectively, in presence of the witnesses. The dead bodies were sent for autopsy to Government Hospital, Kartala vide Ex.P/27, Ex.P/28 and Ex.P/29 where Dr. B.S. Narbadiya (PW/2) conducted postmortem and gave his reports Ex.P/2, Ex.P/3 and Ex.P/4. Investigating Officer prepared spot map vide Ex/P.26. On memorandum of the appellant (Ex.P/6) blood stained weapon of offence-axe was taken into possession vide Ex.P/7. Blood stained clothes of the appellant were taken into possession vide Ex.P/9. B.S. Narbadiya (PW/2) conducted postmortem and gave his reports Ex.P/2, Ex.P/3 and Ex.P/4. Investigating Officer prepared spot map vide Ex/P.26. On memorandum of the appellant (Ex.P/6) blood stained weapon of offence-axe was taken into possession vide Ex.P/7. Blood stained clothes of the appellant were taken into possession vide Ex.P/9. Blood stained & plain soil from the place of incident were taken into possession vide Ex.P/8. The axe seized from the spot was sent for examination vide Ex.P/30 for opinion of the doctor, who opined in his report (Ex.P/5) that blood like substance is present over the axe, however, he advised to send the same to Forensic Science Laboratory for confirmation. He further opined that the wounds present over the persons of the deceased could be caused by the seized axe. Articles seized during investigation including clothes of the appellant and the axe were sent for chemical examination to FSL, Sagar from where the report vide Ex. P/3 I was obtained, according to which clothes of the deceased and the appellant as also the weapon of offence-axe were stained with blood. Further, the articles were sent for chemical examination to Serologist, Calcutta, who gave his report vide Ex.P/32 and opined that the articles were stained with human blood. 4. After completing investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Korba, who in turn, committed the case to the court of Sessions Judge, and the same was received on transfer by the learned Additional Sessions Judge for trial. 5. Learned trial Court framed charge under Section 302 of the IPC against the appellant, who abjured his guilt. The prosecution in order to establish charge against the appellant examined 18 witnesses in all. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in para 1 of the judgment. 6. Thereafter, statement of the accused was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. Learned trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in para 1 of the judgment. 6. Homicidal death of Mangli Bai and Lila Bai is not in dispute as is clear from the evidence of PW/15 Sukh Singh, PW/113 Sitasram and PW/114 Bandhak Singh in presence of whom the door of the house of the appellant was broken where the dead bodies of the deceased persons, blood stained axe were lying on the ground and the appellant was standing there with his daughter Savita (dead) in his lap and also from the evidence of Dr. B.S. Narbadiya (PW/2) who conducted postmortem over the dead bodies and proved his reports Ex.P/2, Ex.P/3 and Ex.P/4 in which he found ante-mortem injuries over the persons of the deceased and opined that the cause of death was due to shock, haemorrhage and fracture on head as a result of injuries sustained by them. After examination of the seized axe he further opined that the injuries sustained by the deceased persons could be caused by the said axe. It is also clear from the reports of FSL (Ex.P/31) and Serologist (Ex.P/32) that the human blood was found on the seized articles. In his cross examination he categorically denied the suggestions of the defence that the injuries found on the dead bodies could be sustained by any other means (by falling down on sharp edged stone etc.). Thus, the homicidal death of the deceased persons is established. 7. Shri Somnath Venna, learned counsel appearing for the appellant submits that the appreciation of evidence in regard to the appellant is not proper and not in accordance with law. The offence against accused has not been proved beyond reasonable doubt. The versions of the witnesses are unreliable. The prosecution story was plotted and the complaint was made with pre-planned scheme to implicate him falsely for getting benefit of property. The trial Court has not properly appreciated the plea of alibi and the property dispute with Sukh Singh and the weapon of offence i.e., axe was not seized from the possession of the accused but the same was lying on the spot. Learned counsel further submits that Dr. The trial Court has not properly appreciated the plea of alibi and the property dispute with Sukh Singh and the weapon of offence i.e., axe was not seized from the possession of the accused but the same was lying on the spot. Learned counsel further submits that Dr. B.S. Narbadiya (PW/2) who conducted postmortem of all deceased opined that there was swelling on the vaginal part of Mangli Bai. He further opined that the breast and vaginal part of Lila Bai were swollen. Further he opined that the vaginal part of Ku. Savita was swollen. In these circumstances, the lady doctor ought to have examined their vaginal part whether they were raped. Learned counsel further submits that in para 37 he deposed the injuries found on the bodies of deceased could be caused by other weapon like sword or spade in addition to axe. The injuries of the deceased were different. The investigation was not fair. The learned court below has not appreciated properly in the surrounding circumspection of the case. The trial court has not appreciated the material contradictions, omissions and improvements in the version of prosecution witnesses. He further submits that considering all the facts and circumstance, the impugned judgment of the trial Court be set aside and the appellant be acquitted of the charges. 8. Per contra, learned Additional Advocate General for the State has supported the impugned judgment of the trial Court. 9. We have heard learned counsel for the parties and perused the record of the trial Court as also the impugned judgment. 10. Report of the incident was lodged by Garud Singh (PW /5) who turned hostile but in the leading questions put to him admitted the FIR (Ex.P/16) and his signature therein. In para 6 he categorically stated that after he found the facts mentioned in the FIR to be true which was recorded by the Police as stated out by him, he put his signature. Thus, the credibility of this witness cannot be discarded only because he turned hostile as PW III Chandra Kiran Singh also corroborated the facts mentioned in the morgue intimations and the FIR lodged by this witness. 11. Thus, the credibility of this witness cannot be discarded only because he turned hostile as PW III Chandra Kiran Singh also corroborated the facts mentioned in the morgue intimations and the FIR lodged by this witness. 11. Sukh Singh (PW/15), the brother of the appellant and son of deceased Mangli Bai, in his deposition before the Court stated that on the date of incident that he and the appellant were residing separately in the same house where the courtyard was common. On the date of incident at about 11.00 a.m., hearing the weeping of the daughter of the appellant, he knocked at the door of the house of the appellant but none responded. On this, he called the villagers Sitaram Kanwar (PW/13) Mohitram, Kotwar Ajar Das (PW/10) and others, thereafter, on the advice of the villagers, the door of the house of the appellant was broken where the appellant was standing with Savita Bai in his lap and the dead bodies of Mangli Bai & Lila Bai were lying on the ground. He further stated that he saw injuries over the dead bodies and the tongue of Savita Bai came out. He also saw the blood stained axe lying near the appellant. Thereafter, he caught hold of the appellant. and tied with the help of Sitaram and others and Garud Singh (PW/5) was sent to Police Station to lodge the report, thereafter, the police came and the matter was investigated. He further stated that the appellant is his brother, Mangli Bai (dead) is his mother whereas Lila Bai and Savita Bai are his sister-in-law and niece respectively. This witness was cross examined at length but nothing could be pointed out by the defence which makes the evidence of this witness untrustworthy or unreliable. 12. PW /13 Sitaram though turned hostile, he admitted the fact in para 3 that he opened the door of the house of the appellant where the three dead bodies were lying on the ground whereas the appellant was sitting in verandah. He also stated that blood was found on the ground and the appellant caught hold and tied by them. 13. PW/14 Bandhak Singh, deposed that he was called by Sukh Singh (PW /15) to the house of the appellant where many persons were present. Appellant was already brought out from the house after the door was broken by Sitaram (PW/13) when he reached there. 13. PW/14 Bandhak Singh, deposed that he was called by Sukh Singh (PW /15) to the house of the appellant where many persons were present. Appellant was already brought out from the house after the door was broken by Sitaram (PW/13) when he reached there. In para 4 he categorically stated that except the appellant, no male member was residing in the house from where the dead bodies were recovered. He further stated that there were five members in the family of the appellant out of which three were killed by him. PW/17 Malik Ram also made the same statement and stated that in the house of the appellant he saw the dead bodies of the deceased persons and except the appellant and the deceased persons, nobody was residing there. 14. PW/3 Awadh Ram Sahu deposed in his statement before the Court that he went to the place of incident and saw the dead bodies of Mangli Bai, Lila Bai and Savita Bai lying there and the memorandum statement (Ex.P/6) was recorded by Station House Officer, M.R. Kashyap (PW/12) in his presence. He also stated that blood stained axe was seized vide Ex.P/7 from the possession of the appellant in which signature of Budhram (PW /18) whereas PW/18 Budhram admitted his signatures in memorandum statement Ex.P/6 of the appellant and seizure of the axe Ex.P/7 but he denied the fact that any enquiry regarding recovery of axe was made to the appellant before him. It is also clear from the evidence of PW/12 M.R. Kashyap, the Station House Officer that he recorded the memorandum statement of the appellant and seized the axe from his possession. 15. So far as the submission of learned counsel for the appellant regarding likelihood of rape on the bodies of deceased persons and their examination by a lady Doctor are concerned, it is clear from the deposition of Dr. B.S. Narbadiya (PW/2) that decomposition of the bodies was started and that were found in such putrefied condition that there were worms over the bodies and skin was started detaching at some places. In para 36 Doctor has denied the suggestion that the deceased persons might have died due to throttling and stated that because of gas formation in the bodies due to putrefaction, the changes might have occurred in tongue, anus and private parts of the bodies of deceased persons. In para 36 Doctor has denied the suggestion that the deceased persons might have died due to throttling and stated that because of gas formation in the bodies due to putrefaction, the changes might have occurred in tongue, anus and private parts of the bodies of deceased persons. Thus, there was no possibility of committing rape on the deceased persons as is also clear from the submission of learned counsel for the appellant. So far as the submission regarding weapon of offence is concerned, it is true that the Doctor admitted in para 37 that the injuries sustained by the deceased persons might have been caused by sword or spade like weapon, in addition to axe but it is a mere possibility and the Doctor has nowhere stated in conformity that the injuries could not be caused by the seized axe and therefore, it cannot be accepted in the light of the evidence available on record that it was only the appellant who was found by the witnesses with the dead bodies and axe in a room bolted from inside. 16. On reappraisal of the evidence available on record, it is clear that on the date of incident the door of the house of the appellant was found bolted from inside and when it was opened in presence of the villagers by Sitaram (PW/13), Sukh Singh (PW /15) and others, the appellant was standing inside the house along with Savita Bai (daughter-dead) in his lap whereas the dead bodies of Mangli Bai (mother) and Lila Bai (wife) and the weapon of offence-axe were found lying on the ground. It is also clear from the evidence that except the appellant nobody was residing with the deceased persons in the house and in such condition, there was no likelihood of committing murder of the deceased persons by anybody else, except the appellant. 17. Having considered all the facts and circumstances of the case and on due appreciation of the overall evidence available on record, we are of the considered opinion that the prosecution has been able to establish the charge against the appellant beyond all reasonable doubt and the trial Court has not committed any illegality or infirmity in convicting the appellant under Section 302 of the IPC for committing murder of Mangli Bai and Lila Bai. There is no substance in this appeal and the same is liable to be dismissed. There is no substance in this appeal and the same is liable to be dismissed. 18. In the result, the appeal is dismissed. Appeal Dismissed.