Chandan Singh vs State of Chhattisgarh

Pritinker Diwaker, J.—This appeal arises out of the judgment and order dated 14.2.2007 passed by Sessions Judge, Kanker (North Bastar) in Sessions Trial No. 01/2006 convicting the accused/appellant u/s 302 -IPC and sentencing him to undergo imprisonment for life and pay fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Case of the prosecution in brief is that based on merg intimation Ex. P-2 given by Nand Kishore (PW-1) on 8.7.2006, FIR Ex. P. 1 was registered against the accused/appellant for the offence u/s 302 IPC. It is alleged by Nand Kishore (PW-1) that on the date of incident at about 8.15 p.m. when he was in his house which is adjacent to that of the accused/appellant, elder daughter of the accused/appellant namely Urmila came there weeping and informed that her father (accused/appellant herein) had killed her mother. Thereafter, Nand Kishore (PW-1), his younger brother Kuber, mother Kamlabai and one Mannuram immediately went to the house of the accused/appellant and saw dead body of deceased Radhika Bai lying in a pool of blood and blood was oozing from her head. It is further alleged that since after the incident, accused/appellant was absconding with his second wife Kamin Bai and children. After completion of investigation, challan was filed by the police on 10.8.2006 against the accused/appellant for the offence u/s 302 IPC and subsequently the Court below also framed the charge under the same section.

In support of its case, prosecution has examined as many as 10 witnesses. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the allegation made against him and pleaded his innocence and false implication in the case.

After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No. 1 of this judgment.

Counsel for the accused/appellant submits that the sole eyewitness to the incident namely Ku. Urmila Nagvanshi (PW-2) is a child witness and has deposed the things against the accused/appellant after being tutored. He further submits that it is a case of grave and sudden provocation and therefore, at the most the act of the accused/appellant would fall u/s 304 (Part-I) IPC and not u/s 302.

Supporting the judgment impugned it has been submitted by counsel for the respondent/State that Ku. Urmila Nagvanshi (PW-2) appears to be a quite natural witness and has deposed the things in the manner the incident had taken place. He further submits that number of injuries were found on the body of the deceased and there is absolutely no evidence on record to show that they were caused as a result of grave and sudden provocation. He submits that based on memorandum Ex. P-5 of the accused/appellant, recovery of axe and blood stained clothes of the accused/appellant was made vide Ex. P-9 and P-10.

Heard counsel for the parties and perused the material available on record.

Nand Kishore (PW-1) - the lodger of FIR has stated in his evidence that he knew the deceased who happened to be the wife of accused/appellant and that her death had occurred on 8.7.2006. He has stated that on the date of incident at about 8 p.m. when he was in his house which is adjacent to that of accused/appellant, he heard the cries of Urmila (daughter of accused and the deceased) saying that her father had killed her mother. According to this witness, immediately thereafter he went to the house of the accused/appellant where body of the deceased was lying fully drenched with blood with injury on her head and that her broken hand was hanging. This witness has further stated that Kamin Bai is the second wife of the accused/appellant. According to him, when he reached the place of incident, accused/appellant and his second wife Kamin Bai were not there. Thereafter, according to this witness, merg intimation Ex. P-2 was given by him to the police, based on which FIR Ex., P-1 was registered. In cross examination, this witness has further clarified that deceased Radhika Bai was the first wife of the accused/appellant and thereafter he married Kamin Bai who belongs to Sahu community. This witness has further stated that earlier the accused/appellant was having 10-12 acres of land in village Parsoda out of which major portion thereof was sold out by him. He has admitted that two acres of barren land was given to deceased to eke out her livelihood and the said land was being cultivated by him. According to this witness, the accused/appellant was living in the same house with his two wives though the food was cooked by them separately. He has further stated that in one portion of the house, accused/appellant was living with his second wife Kamin Bai whereas the other portion thereof was occupied by this witness. According to him, though deceased used to cook food in her own house but since 5-6 years thereafter, she used to sleep in his house. This witness has further stated that there used to be quarrel between the accused/appellant, deceased and their daughter (PW-2) and that on account of fear the deceased and her daughter used to sleep in his house. According to him, deceased used to ask for money for her personal expenses from the accused/appellant. There appear to be certain contradictions in the statement of this witness but they being trivial in nature are not significant and are required to be overlooked.

Ku. Urmila Nagvanshi (PW-2) - daughter of the deceased and the accused has stated that the accused/appellant had two wives and that name of her mother is Radhika Bai and that of her second mother (Mausi Maan) is Kamin Bai. This witness has further stated that she has one younger sister who at the relevant time was studying in class IV and that at the time of incident she was living with her mother. According to her, her mother and second mother used to cook food separately and that there used to be some dispute between the accused/appellant and her mother over retaining the key of the verandah with her after putting a lock thereon. On the date of incident, the accused/appellant is said to have told the deceased that her act of locking the verandah and then keeping the key with her created a problem for the accused/appellant in cooking food after returning from the field. Thereafter, according to this witness, she went to the house of her aunt Kamla Bai to sleep and that her mother (deceased) went to the house of the accused/appellant to collect her slippers. This witness has further stated that when she also went to the house of her father (accused/appellant) in search of her mother, she saw him assaulting her mother with axe. Thereafter, this witness is said to have started crying and then she rushed to the house of Nand Kishore (PW-1). She has clarified that at the time when the accused/appellant was assaulting her mother with axe, her second mother Kamin Bai was not there and that after assaulting the deceased the accused/appellant fled away on bicycle. In cross examination, though this witness was put various suggestions to the effect that in fact she had not seen the incident but categorically denying the same she has firmly stated that it was the accused/appellant who caused injuries to her mother with axe. Gautam Sahu (PW-3) - neighbour of the accused/appellant has stated in his evidence that on the date of incident after hearing the noise coming from the house of the accused/appellant he went to the spot and saw the body of the deceased lying in the verandah and that he did not see anyone passing from the side of his shop. However, at this stage he has been declared hostile. Kamla Bai (PW-4) - mother of Nand Kishore (PW-1) has stated that on the date of incident Urmila (PW-2) came to her house crying that her father (accused/appellant) had killed her mother and on hearing v. this she along with other persons went to the spot and saw that body of the deceased was lying near the door. This witness is also said to have touched the body of the deceased but it was not responding, and at that time the accused/appellant was not there. In cross examination also this witness has stated almost the same thing as in the examination in chief. Vijay Soni (PW-5) and Sadaram (PW-6) are the witnesses to memorandum Ex. P-8 and seizure made under Ex. P-9 and P-10 and they have not supported the case of the prosecution and have been declared hostile. Devram Nagraj (PW-7) is the Patwari who had prepared spot map Ex. P-11. Dr. J.L. Uikey (PW-8) is the witness who conducted post mortem examination on the body of the deceased and found following injuries thereon vide Ex. P-14:

(i) An incised wound on right side of forehead situated obliquely extending upto right eye-size 31/2 x 2" across the skull bone, multiple fracture of right occipital bone.

(ii) An incised wound over the left forearm at the junction of upper 21/3rd & lower 1/3rd part of forearm-size 2 x 1/2 c 3/4, fracture of left radius & ulna bone, hand hanged below the injury.

According to the opinion given by this witness, the cause of death was shock due to head injury and excessive hemorrhage and the death was homicidal in nature. This witness has stated in his evidence that after receiving the weapon along with memo Ex. P-15, he gave his query report and according to him the injury sustained by the deceased could be caused by the said weapon (axe). Kuber Singh (PW-9) -the brother of Nand Kishore (PW-1) has made almost the same statement as (PW-1) and mother Kamla Bai (PW-4) and supported the case of the prosecution. He has stated that after hearing the cries raised by Urmila (PW-2) he rushed to the spot and saw the body of the deceased lying in the pool of blood. B.L. Pal (PW-10) is the investigating officer who has duly supported the case of the prosecution. Even in his statement recorded u/s 313 of the Code of Criminal Procedure, the accused/appellant has not taken any specific defence except stating that he has been falsely implicated in the case on account of personal rivalry.

Minute examination of the evidence available on record particularly that of Urmila Nagvanshi (PW-2) makes it crystal clear that it is the accused/appellant who committed the murder of the deceased by causing several Injuries on her body with the help of axe. Statement of Urmila Nagvanshi (PW-2) being duly supported by Nand Kishore (PW-1), Kamla Bai (PW-4) and Kuber Singh (P W-9) appears to be fully trustworthy and there is no reason for this Court to disbelieve the same. Moreover, Dr. J.L. Uikey (PW-8) has duly proved the injuries sustained by the deceased. Urmila Nagvanshi (PW-2) happens to be the daughter of the deceased and the present appellant and has stated the things which she had seen on the date of occurrence. Being daughter of the accused/appellant, this witness cannot be expected to have made a false statement against her own father that too of an offence of such serious nature. In these circumstances, this Court finds no force in the argument of the counsel for the accused/appellant that Urmila Nagvanshi (PW-2) is a tutored witness and therefore her testimony cannot be relied upon.

In Bharvad Bhikha Valu and Others Vs. The State of Gujarat, the Supreme Court held that even if there are no infirmities in the evidence of a child witness, it would be prudent to seek corroboration of such evidence in view of the tender age of child witness. In Dattu Ramrao Sakhare and Others Vs. State of Maharashtra, it has been held by the Supreme Court that the Court must see that the child witness is reliable and her demeanour is like any other competent witness and there is no likelihood of being tutored. There is no rule practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand, but as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In Panchhi and others Vs. State of UP, The Supreme Court held that the law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Referring to various other judgments, the Supreme Court held in the matter of Ratansinh Dalsukhbhai Nayak Vs. State of Gujarat, that conviction on the basis of child witness is permissible if such witness is found competent to testify and the Court after careful scrutiny of its evidence is convinced about quality and reliability of the same.

Thus considering the aforesaid legal position, statement of Urmila Nagvanshi (PW-2) appears to be fully trustworthy as the same finds support from the other surrounding circumstances. There is no force in the argument of counsel for the accused/appellant that act of the accused/appellant would not fall u/s 302 IPC but u/s 304 (Part-I) as there is no evidence on record to show that the incident was the outcome of grave and sudden provocation. Accordingly, the findings recorded by the Court below convicting the accused/appellant u/s 302 IPC are fully justified and there appears to be no reason for this Court to interfere therewith. Appeal thus being without substance is liable to be dismissed. It is dismissed as such judgment impugned thus stands affirmed. As the accused/appellant is already in jail, nothing with respect to his surrender etc. is required to be mentioned.