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2018 DIGILAW 538 (MP)

Balla @ Samaru v. State of M. P.

2018-06-18

ANJULI PALU, S.K.GANGELE

body2018
JUDGMENT Palo, J.--1. This appeal has been filed by the accused being aggrieved by the judgment dated 6.11.2008 passed by 1st Additional Sessions Judge, Mandla in S.T. No. 126/2007, whereby the appellant has been convicted for offence punishable under section 302 of the IPC and sentenced for life imprisonment and fine of Rs. 1,000/- with default stipulation. 2. In brief the prosecution case is that on 21.8.2007 at about 10:40 p.m. FIR has been lodged at Outpost Anjaniya of Police Station, Mandla by Sugreev Gond against the appellant for committing murder of Jhamki Bai (mother-in-law of Sugreev Gond) at village Harrai Tola by inflicting blows of an axe on her neck. After investigation, charge sheet was filed against the appellant for offence punishable under section 302 of the IPC. 3. The appellant abjured his guilt and pleaded innocence. During trial, the trial Court relied on the testimony of child witness Ku. Kiran (PW3), her father Sugreev (PW5) and mother Sonibai (PW6). The parents of Ku. Kiran Bai reached on the spot just after the incident. They saw that the appellant was present on the spot with an axe. After considering the evidence on record, the trial Court convicted and sentenced the appellant as mentioned above. 4. The appellant has challenged aforesaid findings on the grounds that the trial Court has wrongly relied on the aforesaid witnesses. Some witnesses turned hostile and some were not examined by the prosecution. Hence, the prosecution has failed to prove its case beyond reasonable doubt. The appellant prayed that the impugned judgment be set aside and the appellant be acquitted from the charge levelled against him. 5. We have heard learned counsel for the parties at length and perused the record. 6. Learned Government Advocate has vehemently opposed the contentions of learned counsel for the appellant and has submitted that the trial Court has rightly convicted and sentenced the appellant on the evidence available on record. Therefore, he prayed that appeal be dismissed. 7. Ku. Kiran (PW3) was seven years old at the time of incident and also present with the deceased on the spot. The deceased was her maternal-grandmother. She stated that in her presence, the appellant came to the house of deceased and inflicted blows of an axe on the neck of the deceased. In cross-examination, she denied that due to darkness, she did not see the incident. 8. The deceased was her maternal-grandmother. She stated that in her presence, the appellant came to the house of deceased and inflicted blows of an axe on the neck of the deceased. In cross-examination, she denied that due to darkness, she did not see the incident. 8. Her father Sugreev (PW5) and mother Sonibai (PW6) corroborated the testimony of Ku. Kiran Bai (PW3). They have stated that their children were crying and stating that the appellant killed their Nani. Thus, they went to the spot and saw the deceased Jhamki Bai lying dead on the ground. Blood was oozing out from her neck. The appellant was coming out from the house of deceased with axe. He was neighbour of the deceased. In cross-examination of aforesaid witnesses, we do not find any inconsistency in their versions. FIR had been lodged by Sugreev promptly at outpost Anjaniya against the appellant. Thereafter, police came to the spot and seized blood stained soil and axe, which was used for committing offence with the deceased. Aforesaid axe was seized from Badi of Tezlal as per the memorandum (Ex.P-12) of appellant vide seizure memo Ex.P-13. 9. The testimony of Sugreev is duly corroborated by investigating officer Sujeet Shrivastava (PW12) and Swagjeet Singh Dhami (PW10). Axe was promptly seized on the next day i.e. on 22.8.2007. According to investigating officer Sujeet Shrivastava (PW12) all the seized articles were sent for chemical examination to FSL Sagar. As per FSL report Ex.P-26, human blood was found on the seized articles i.e. axe and soil. The appellant failed to offer any explanation of the source of human blood which was found on his axe. All the evidence clearly establish the involvement of appellant with the crime by using a deadly weapon like an axe. The appellant inflicted blows of axe on the neck of the deceased. Due to aforesaid injuries, the deceased died. Her injuries were examined by Dr. A.S. Peepare (PW7). 10. Dr. A.S. Peepare (PW7) conducted postmortem of the body of the deceased and found an incised wound of 2” below left ear size of 3” x 1” x 2.5” x bone deep. As per his opinion, Jhamki Bai died due to haemorrhage shock because of excessive bleeding from her neck. The nature of injuries were ante-mortem and homicidal. He also examined axe and opined that injuries may be caused by the aforesaid axe by using it forcibly. As per his opinion, Jhamki Bai died due to haemorrhage shock because of excessive bleeding from her neck. The nature of injuries were ante-mortem and homicidal. He also examined axe and opined that injuries may be caused by the aforesaid axe by using it forcibly. In our opinion, aforesaid injuries are sufficient to cause death of the deceased in ordinary course of nature. 11. We do not find any reason to disbelieve the opinion of Dr. Peepare (PW7). His opinion also corroborates the testimony of Ku. Kiran (PW3), Sugreev (PW5) and Sonibai (PW6). We find that the prosecution has duly established the case against the appellant. Act of the appellant clearly comes in the purview of murder. 12. Learned counsel for the appellant contended that the sole eyewitness is a child witness. She was tutored by her parents, hence conviction of the appellant cannot be based on it. We are not inclined to accept this contention. We do not find any reason to disbelieve the testimony of Kiran (PW3). There is no indication to show that she was tutored by anyone. She has no reason to implicate the appellant falsely with the alleged crime. The Supreme Court has held in cases of Gul Singh @ Guliya and ors v. State of M.P. and anr. [2014 SCC Online SC 719], and Raju @ Devendra Choubey v. State of Chhattisgarh [ AIR 2014 SC 3741 ], is that- “Conviction can be based on the testimony of child witness.” 13. In view of the aforesaid facts, the trial Court has rightly held the appellant guilty for committing murder of the deceased. The appellant was armed with deadly weapon. He inflicted injuries on the neck of the deceased, which was sufficient to cause death of deceased. 14. In our opinion, the trial Court has rightly convicted the appellant for commission of offence punishable under section 302 of the IPC and awarded proper sentence. At present, the appellant is in jail. We do not find any merit in this appeal. Accordingly, appeal is dismissed. 15. Copy of the judgment be sent to the trial Court along with the record for information.