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2009 DIGILAW 46 (CHH)

Jairam Mourya v. State of C. G .

2009-02-10

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2009
JUDGMENT Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Appellant Jairam Mourya stands convicted u/s 302 IPC and sentenced to undergo rigorous imprisonment for life, for commission of murder of deceased Sato Bai, by the Sessions Judge, Bastar at Jagdalpur in Sessions Trial No. 401/2002 on 2.4.2003. (2) On 20.8.2002 at about 4.30 p.m., deceased Sato Bai had gone to fetch water from a boring in the village. Other ladies of the village namely- Kamla Bai (PW-2), Mangli Bai (PW-7), Rodi Bai (PW-3), Jaiyati Bai (PW-8) and Sayato Bai (PW-9) were also present there. The allegations are that appellant Jairam came there, having a Tangia in his hands, and assaulted the deceased on her neck. The deceased died on the spot. Husband of the deceased namely Mansingh Dhruw (PW-1) was in a different village. When he returned back, his servant Lachhuram narrated the story to him. He lodged the merg intimation (Ex.-P/1) and the First Information Report (Ex.-P/2) on the same day at about 9.00 p.m. (3) On such information, the Investigating Officer reached to the scene of occurrence on 21.8.2002, gave notice (Ex.- P/8) to the Panchas, and prepared inquest (Ex.-P/7) on the body of the deceased. The dead body of the deceased was sent for its post-mortem to Civil Hospital, Bhanpuri under requisition Ex.-P/9. The post-mortem examination was conducted by Dr.(Smt.) A. Kachhap (PW-10), who prepared her report Ex.-P/15. She noticed the following external injuries on the body of the deceased: (i) Incised wound at the back portion of the neck 21/2 inch x 11/2 inch x 31/2 inch deep; (ii) Incised wound on the front portion of the neck 11/2 inch x 1 inch, the bone of the neck was cut & (iii) Incised wound on the left shoulder 21/2inch x 11/2 inch x 11/2 inch deep, the head of humorous was cut. On internal examination, she found that 2nd & 3rd cervical vertebra were also cut. All the injuries were caused by sharp edged weapon and they were ante-mortem in nature. She opined that the cause of death was shock due to extensive injury. In further investigation, a memorandum (Ex.-P/4) of the appellant u/s 27 of the Evidence Act was recorded leading to discovery of Tangia and the Tangia was seized at the instance of the appellant under Ex.-P/5. She opined that the cause of death was shock due to extensive injury. In further investigation, a memorandum (Ex.-P/4) of the appellant u/s 27 of the Evidence Act was recorded leading to discovery of Tangia and the Tangia was seized at the instance of the appellant under Ex.-P/5. Blood stained stone and plain stone were also seized from the place of occurrence under Ex.-P/6. The seized articles were sent for their chemical examination to the Forensic Science Laboratory, Raipur under Ex.-P/10, from where, a report, Ex.-P/11, was obtained. According to the F.S.L. report, blood stains were found on Tangia and other articles except the plain stone. (4) After completion of usual investigation, the charge- sheet was filed in the Court of concerned Magistrate, who in turn, committed the matter to the Court of Sessions Judge, Bastar at Jagdalpur, where the trial was conducted and the accused/appellant was convicted and sentenced as aforementioned. (5) The conviction of the appellant is based upon the testimonies of two eye witnesses namely- Kamla Bai (PW-2) and Mangli Bai (PW-7). (6) Ms. Nirupama Bajpai, learned counsel appearing on behalf of the appellant, has not disputed the homicidal death of the deceased. Moreover, it comes in the evidence of Kamla Bai (PW-2) and Mangli Bai (PW-7) that the deceased was assaulted by the appellant by a Tangia near the boring in the village. Dr.(Smt.) A. Kachhap (PW-10), who conducted the post-mortem examination, noticed 3 external injuries on the neck of the deceased, which were caused by sharp edged weapon. The injuries were so deep that the bone of the neck was also cut. According to her opinion, the cause of death was shock due to extensive injury. In view of the above, it was established that the death of the deceased was homicidal in nature. (7) Ms. Nirupama Bajpai then argued that the eye witnesses are not reliable and the document Ex.-D1-A (injury report of the appellant) would show that he was in police custody at about 11.30 a.m. on 20.8.2002, therefore, his presence on the place of occurrence in the evening is doubtful. (8) On the other hand, Shri Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order passed by the Sessions Court. (8) On the other hand, Shri Ashish Shukla, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment and order 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 case. (10) PW-2, Kamla Bai, deposed in clear words that deceased Sato Bai was murdered by the appellant by assaulting her by a Tangia. At that time, she had gone to fetch water from the boring. Sato Bai had also come to fetch water from the boring. The appellant gave Tangia blow on the neck of the deceased. When the appellant had dealt with Tangia blow, at that time, Rodi Bai (PW-3), Jaiyati Bai (PW-8), Mangli Bai (PW-7) and Sayato Bai (PW-9) were also present there. It was 4.00 p.m. in the evening. In the cross examination, she deposed that it is wrong to say that she had not seen the appellant assaulting the deceased. She admitted that they had not seen the appellant coming to the place of occurrence but they had seen him assaulting the deceased. (11) PW-7, Mangli Bai, deposed that she had gone to the boring to fetch water. There deceased Sato Bai was assaulted by the appellant by a Tangia. She categorically deposed that she could not see that on which part of the body, the deceased was assaulted as she ran away immediately when the appellant assaulted the deceased. She has also deposed about the presence of Jaiyati Bai (PW-8), Kamla Bai (PW-2), Rodi Bai (PW-3) and Sayato Bai (PW-9) at the scene of occurrence. She deposed about the time to be 4.00 p.m. This witness was also put to the cross examination by the defence but nothing unusual could be brought on record to impeach her credibility. (12) In appreciation of evidence of these 2 witnesses and the other facts and circumstances of the case, we do not find any infirmity in the testimonies of these witnesses. They are the natural witnesses and their presence on the place of occurrence cannot be doubted. The place of occurrence is a public place where the villagers used to go to fetch water. In the village, normally this work is done by the ladies. They are the natural witnesses and their presence on the place of occurrence cannot be doubted. The place of occurrence is a public place where the villagers used to go to fetch water. In the village, normally this work is done by the ladies. In absence of any adverse material on record against credibility of these witnesses, we find their evidence to be trustworthy and reliable. (13) About the second argument advanced by Ms. Nirupama Bajpai, we have gone through the contents of Ex.-D1-A, which is the injury report of the appellant. This report is dated 20.8.2002. Ms. Bajpai argued that the time of examination of the appellant has been shown as 11.30 a.m. in this report, therefore, from 11.30 a.m., the appellant was in custody and his presence on the scene of occurrence in the evening of the said date is doubtful. She also referred to the evidence of Dr.(Smt.) A. Kachhap (PW-10), who conducted the MLC and deposed that she has examined the appellant at about 11.30 a.m. on 20.8.2002. We have considered the above argument. The MLC of the appellant was done on the requisition of the concerned police station which is at the back page of the MLC report. The contents of the requisition form, on which the MLC (Ex.-D1-A) was conducted, would show that in its kafyat column, it has been written that on 20.8.2002 at about 4.30, the appellant had murdered Sato Bai by assaulting her by a Tangia and thereafter, he also caused injuries to himself, therefore, his medical examination be conducted and a report be provided. It is not disputed by the counsel for the appellant that the MLC was not done on this requisition. In fact, it is in format. There is cross examination of the Investigating Officer, Jageshwar Netam (PW-6), on this point, who deposed vide Para-13 that when he reached to the village, the appellant was in the village itself. The appellant had also received injuries. The villagers had caught him. He had sent the appellant to the hospital for his medical examination. The appellant had received injuries on head, neck and chest. The appellant had also received injuries. The villagers had caught him. He had sent the appellant to the hospital for his medical examination. The appellant had received injuries on head, neck and chest. This further shows that, in fact, the appellant was sent to the hospital after the present incident and not before it, and by mistake, the time in the MLC has been mentioned as 11.30 a.m. and the Doctor also deposed in her evidence in the same fashion only on the basis of mentioning of such time in the MLC report. This was merely an irregularity which cannot be held to be fatal to the prosecution on the face of the evidence of eye witnesses account. The defence cannot be allowed to read the part of the document in isolation. If the document Ex.-D1-A is read as a whole, particularly in light of the evidence of Investigating Officer, it would appear that on the requisition sent by the police along with the appellant for his examination in connection with the above incident, which is at the back portion of MLC report Ex.-D1-A, the appellant was examined by the Doctor. The argument advance by the learned counsel for the appellant cannot be accepted. (14) We do not find any illegality or infirmity in the judgment and order passed by the trial Court convicting & sentencing the appellant u/s 302 IPC. The appeal deserves to be and is accordingly dismissed.