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2013 DIGILAW 267 (CHH)

BABLU @ JAISWAL PAIKRA v. STATE OF C. G.

2013-09-09

RADHE SHYAM SHARMA, SATISH K.AGNIHOTRI

body2013
ORAL JUDGMENT 1. This appeal is directed against judgment dated 18-09-2008 passed by Sessions Judge, Surguja (Ambikapur) in Sessions Trial No.465/07. By the impugned judgment, accused/appellant Bablu @ Jaiswal Paikra has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.500/-, in default of payment of fine, to further undergo rigorous imprisonment for 3 months. 2. Case of the prosecution, in brief, is as under : On 28-08-2007 at about 7:00 PM, after consuming handiya (country made liquor), the appellant was abusing and threatening his in-laws. At that time, the appellant was carrying an axe (tangi) in his hand. Due to fear his in-laws closed the door of their house from inside. Thereafter, the appellant started hitting on the door of the house with axe. When Ratua (deceased) opened the door, the appellant gave axe blow on Ratua (deceased) and Ratua (deceased) cried for help. Having heard the cry of Ratua (deceased), his son Lakhan (PW-1) came there. At that time, the appellant further gave axe blows on Ratua (deceased). Ratua (deceased) sustained injuries on his abdomen, back, waist and hands and his intestines came out. When Lakhan (PW -1) tried to save his father (deceased), the appellant threw his axe and ran towards forest through fields. Thereafter, Lakhan (PW-1) chased the appellant and gave 2-3/athi blows to him. Ratua (deceased) died due to the injuries caused by the appellant. On the same day at about 21:50 hrs., Lakhan (PW-1) lodged Merg Intimation (Ex.P/1) and First Information Report (Ex.-P/2) in Police Station, Shankargarh. Investigating officer reached the place of occurrence and gave notice (Ex.P/3) to Panchas and prepared inquest (Ex.-P/4) on the dead body of the deceased. The dead body of the deceased was sent to the Community Health Center (CHC), Shankargarh. Investigating officer reached the place of occurrence and gave notice (Ex.P/3) to Panchas and prepared inquest (Ex.-P/4) on the dead body of the deceased. The dead body of the deceased was sent to the Community Health Center (CHC), Shankargarh. Doctor Shashikala Toppo (PW-3) conducted postmortem on the dead body of the deceased and she gave her report (Ex.P/7) finding as under : (i) incised wound l1cm x 5cm x 1cm extended from the right costal margin to right hypochondrium; (ii) incised wound 8cm x 4.5cm x 4cm extended from right iliac fossa to right iliac crest; (iii) two redish abrasion, one of 2cm x 1 cm on the right arm, and another of 2cm x 8.5cm on ventral portion of right arm; (iv) incised wound, 4.5cm x 2cm x 2.5cm, with compound fracture of left radius bone in left forearm; (v) incised wound, 8cm x 5cm x 3.5cm, with compound fracture of left humerus bone; (vi) incised wound, 7cm x 4cm x 5cm, on hypocondrium region of abdomen in which intestine came out from wound, spleen was ruptured in size of 5cm x 1cm x 2.5cm, all the injuries were antemortem in nature. Doctor Shashikaia Toppo (PW-3) opined that cause of death was shock due to excessive haemorrhage and injury to vital organ and the death was homicidal in nature. In further investigation, spot map (Ex.-P/5) was prepared by investigating officer and another spot map (Ex.-P/6) was prepared by Patwari Mangal Sai (PW-4). Plain soil, blood stained soil, axe and slipper were seized from the place of occurrence vide Ex.-P/9. Memorandum statement of the appellant was recorded under Section 27 of the Evidence Act vide Ex.-P/10 and at his instance, jeans and shirt were seized from the appellant vide Ex.-P/11. Seized articles were sent to the Forensic Science Laboratory (FSL), Raipur vide Ex.-P/14 and FSL report (Ex.-P/15) was received therefrom. In FSL report (Ex.-P/15), it is mentioned that article C - Kulhadi (the axe) used by the appellant was stained with blood. After completion of the investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate First Class, Ambikapur, who, in turn, committed the case to the Court of Session, Ambikapur who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Shri Ratan Pusty, learned counsel for the appellant argued that there was no independent eye-witness. 3. Shri Ratan Pusty, learned counsel for the appellant argued that there was no independent eye-witness. Lakhan (PW-1) is son, Kalhi (PW-2) is widow of deceased Ratua. They are highly interested witnesses. There is contradiction in the First Information Report (Ex.-P/2) lodged by Lakhan (PW-1) and in his evidence before the Court. Evidences of Lakhan (PW-1) and Kalhi (PW-2) are not cogent and reliable and thus, cannot form the basis for conviction of the appellant. 4. On the contrary, Shri Surya Kant Mishra, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Sessions Judge do not warrant any interference by this Court. 5. We have heard learned counsel for the parties at length and have perused the impugned judgment as also the records of the Sessions Case. 6. The conviction of the appellant under Section 302 IPC is based on the evidence of Lakhan (PW-1) and Kalhi (PW-2). 7. It is not disputed that Lakhan (PW-1) is son and Kalhi (PW-2) is wife of deceased Ratua. It is also not disputed that the appellant is brother-in-law of Lakhan (PW-1) and son-in-law of Kalhi (PW-2). It is true that Lakhan (PW-1) and Kalhi (PW-2) both are related to the deceased as well as the appellant. 8. An eye-witness version cannot be discarded by the Court merely on the ground that such eye-witness happened to be a relation or friend of the deceased. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present, and statement of the witness is unworthy of credence that the Court would examine the possibility of discarding such statements. But where the presence of the eye-witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence itself, it will not be permissible for the Court to discard the statements of such related or friendly witness. (See Dayal Singh & Ors. Vs. State of Uttaranchal, AIR 2012 SC 3046 ). 9. Lakhan (PW-1) deposed that the appellant is his brother-in-law. His sister Ruchi was married to the appellant. The deceased was his father. The appellant was residing at Ambikapur a week prior to the date of incident. (See Dayal Singh & Ors. Vs. State of Uttaranchal, AIR 2012 SC 3046 ). 9. Lakhan (PW-1) deposed that the appellant is his brother-in-law. His sister Ruchi was married to the appellant. The deceased was his father. The appellant was residing at Ambikapur a week prior to the date of incident. On the date of incident, at about 6.00-7.00 pm, the appellant dime to their house after consuming liquor and was hurling filthy words to his in-laws. He also used filthy language against the deceased. Thereafter, his cousin brother Lavkush, mother Kalhi (PW-2) and his father (deceased Ratua) closed the door of the house from inside. At that time, the appellant was carrying an axe in his hand and started giving axe blows on the door of the house. He further deposed that when deceased Ratua opened the door and came out from the house, the appellant assaulted the deceased with the axe, at once. The appellant gave axe blows on the abdomen, waist and arm of the deceased and the deceased sustained injuries on his abdomen, back, waist and hands and his intestines came out. He further deposed that the deceased shouted for help, Lakhan (PW -1) tried to save the deceased. Thereafter, the appellant threw his axe and ran toward forest through fields. Lakhan (PW -1) chased the appellant, but he succeeded to run towards the forest. The deceased died on the spot due to injuries caused by the appellant. 10. Kalhi (PW-2) deposed that on the date of incident, at about 8.00 pm, the appellant abused her and her family members. She further deposed that her husband Ratua (deceased) closed the door from inside and at that time, the deceased, her daughter Ruchi, her son Lakhan (PW -1) and her nephew Lavkush were inside the room. The appellant started to hit the door by the axe. The deceased opened the door and came out from the room. The appellant assaulted the deceased with the axe. The deceased sustained injuries on his abdomen, waist, hand and back and fell down. The appellant fled from there. Lakhan (PW -1) chased him, but the appellant succeeded to run away. She further deposed that the deceased died on the spot. 11. Lakhan (PW-1) deposed that he lodged Merg Intimation (Ex.-P/1) and First Information Report (Ex.-P/2) in Police Station, Shankargarh. The incident took place on 28-08-2007 at about 19:00 hrs. The appellant fled from there. Lakhan (PW -1) chased him, but the appellant succeeded to run away. She further deposed that the deceased died on the spot. 11. Lakhan (PW-1) deposed that he lodged Merg Intimation (Ex.-P/1) and First Information Report (Ex.-P/2) in Police Station, Shankargarh. The incident took place on 28-08-2007 at about 19:00 hrs. and Merg Intimation (Ex.P/1) was lodged on the same day at about 21:50 hrs. and the FIR (Ex.-P/2) was lodged on the same day at about 21:55 hrs. The distance of the police station is 5. kms. from the place of occurrence. The Merg Intimation (Ex.-P/1) and the FIR (Ex.-P/2) were lodged within 3 hours of the incident. In the Merg Intimation (Ex.-P/1), it is mentioned that at about 7.00 pm, the appellant abused and assaulted the deceased with an axe. He gave axe blows on abdomen, back and arm of the deceased and thereafter fled from there and the deceased died. The Merg Intimation (Ex.-P/1) and the FIR (Ex.-P/2) were lodged promptly and contain the name of the appellant/accused as assailant. Therefore, the evidence of Lakhan (PW-1) and Kalhi (PW-2) are supported by the Merg Intimation (Ex.-P/1) and the FIR (Ex.-P/2). 12. Inspector T.R. Sahu (PW-7) deposed that he prepared inquest (Ex.P/4) on the dead body of the deceased and the dead body of the deceased was sent to CHC, Shankargarh for postmortem examination. Doctor Shashikala Toppo (PW -3) deposed that she conducted postmortem examination on the dead body of the deceased and she found above 6 injuries on the body of the deceased. Doctor Shashikala Toppo (PW-3) opined that cause of death was shock due to excessive haemorrhage and injury to vital organ and the death was homicidal in nature. Therefore, the evidence of Lakhan (PW-1) and Kalhi (PW-2) are fully supported by medical evidence also. 13. We have perused the evidence of Lakhan (PW -1) and Kalhi (P.W.2) with utmost circumspection. Their evidence is cogent, clinching and trustworthy and corroborated by the FIR (Ex.-P/2) and medical evidence. 14. Doctor Shashikala Toppo (PW-3) opined that cause of death was shock due to excessive haemorrhage and injury to vial organ and the death was homicidal in nature. The place of occurrence was house of the deceased, his son Lakhan (PW-1) and wife Kalhi (PW-2). Therefore, their presence at the place of occurrence is natural and cannot be doubted. 14. Doctor Shashikala Toppo (PW-3) opined that cause of death was shock due to excessive haemorrhage and injury to vial organ and the death was homicidal in nature. The place of occurrence was house of the deceased, his son Lakhan (PW-1) and wife Kalhi (PW-2). Therefore, their presence at the place of occurrence is natural and cannot be doubted. The incident took place at about 7.00 pm, therefore, the presence of Lakhan (PW-1) and Kalhi (PW-2) in the house was natural and they have no motive to falsely implicate the appellant who is brother-in-law and son-in-law of the above witnesses, respectively. 15. For the foregoing reasons, we do not find any infirmity in the finding recorded by the learned Sessions Judge that it was none else but the appellant who inflicted injuries on the body of the deceased with the axe and the deceased succumbed to the injuries caused by him. 16. For the foregoing reasons, we do not find any substance in the appeal and as such the same deserves to be and is hereby dismissed. Appeal Dismissed.