Ajay Kumar Mehar Vs State Of Chhattisgarh

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Criminal Appeal No.1085 of 2017

Ajay Kumar Mehar, son of Khelawan Ram Mehar, age 24 years, resident of Bade Medhpar Bazar, Police Station Hirri, District Bilaspur, Chhattisgarh

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---- Appellant

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versus

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State of Chhattisgarh through Police Station Hirri, Bilaspur, District Bilaspur, Chhattisgarh

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--- Respondent

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----------------------------------------------------------------------------------------------For Appellant : Ms. Nirupama Bajpai, Advocate For Respondent : Shri Sharad Mishra, Panel Lawyer

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Hon'ble Shri Justice Sanjay K. Agrawal Hon’ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board (10.7.2024)

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Sanjay Kumar Jaiswal, J.

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1. Invoking jurisdiction of this Court under Section 374(2) of the Code of Criminal Procedure, the sole Appellant herein has preferred this criminal appeal calling in question legality, validity and correctness of the judgment dated 28.6.2017 and order of sentence dated 30.6.2017 passed by the 2^nd Additional Sessions Judge, Bilaspur, Chhattisgarh in Sessions Trial No.6 of 2017 by which he has been convicted and sentenced as under:

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Conviction		Sentence
Under Section 302 of the Indian Penal Code	Imprison of Rs.5, payment rigorous months	ment for life and fine 000 in default of thereof additional imprisonment for 6

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2. Name of deceased is Sakshi alias Foni. On the fateful day, she was aged about 11 years. On 24.10.2016, daughters of Santosh Chaturvedi (PW1), namely, Sakshi (the deceased) and Sonam (PW5) had gone to a shop in Village Medhpar Bazar situated near their house to purchase Himgange Oil. While their return from the shop, when they reached in a lane opposite to the house of Amrautin Bai (PW6), the Appellant caught hair of Sakshi alias Foni and assaulted on her neck and chin with a hansiya (sickle). Blood started oozing out. Sonam (PW5) returned home and informed the incident to her mother Manju (PW7). Sakshi, after running to some distance, fell down near her house and she died within 10 minutes. Her father Santosh Chaturvedi (PW1) lodged Dehati Morgue Intimation (Ex.P1) on the spot. Thereafter, Dehati Nalishi (Ex.P2) was also registered on the spot. Police prepared spot map (Ex.P3). Inquest (Ex.P6) was conducted. Dead body of Sakshi was sent for post mortem examination vide Ex.P30. Post mortem examination was conducted by Dr. Devesh Pradhan (PW21). He gave post mortem report (Ex.P46) in which he reported following injuries:

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(i) Body skin colour pale,

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(ii) Incised wound of 5x½x½ cms. on right mastoid region oblique in direction,

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(iii) Incised wound of 2x½x½ cms. on right maxillary process,

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(iv) Incised wound on right side complete transverse in direction mid neck to right lateral at the thyroid region, 7x2x1½ cms., external jugular vein complete cut and sternocleidomastoid muscle cut and small cut transverse in direction internal jugular vein and common carotid artery,

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(v) Incised wound of 4x3x with bone depth (mandible bone) and

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(vi) Incised wound of 2x1x½ cms. middle finger proximal phalanges on right side of hand, rigor mortis tut both limb.

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He opined that mode of the death was haemorrhagic shock due to injury in major vessels of neck external jugular and internal jugular common carotid. He further opined that the nature of death was homicidal.

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3. First Information Report (Ex.P44) was registered against the Appellant for an offence punishable under Section 302 IPC. Morgue Intimation (Ex.P43) was registered. Plain and blood stained soil were seized from the place of occurrence vide Ex.P17. Memorandum statement (Ex.P26) of the Appellant

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was recorded and at his instance the alleged weapon of offence sickle ( hansiya ) was seized vide Ex.P20. His blue full shirt and full pant were also seized. He was arrested vide Ex.P21. The seized sickle was sent to Medical Officer, Community Health Centre, Bilha for opinion. Report thereof is Ex.P48. The seized articles were sent to the Forensic Science Laboratory for examination. FSL Report is Ex.P40. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of investigation, a charge-sheet was filed against the Appellant.

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4. The Trial Court framed charge against him under Section 302 IPC. To rope in the Appellant, the prosecution examined as many as 24 witnesses. In examination under Section 313 of the Code of Criminal Procedure, the Appellant denied the guilt and pleaded innocence. He did not examine any witness in his defence. On completion of the trial, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, the instant appeal.

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5. Learned Counsel appearing for the Appellant argued that the deceased was elder sister of eyewitness Sonam (PW5) and daughter of nephew of other eyewitness Amrautin Bai (PW6) and, therefore, both the eyewitnesses are interested witnesses. Hence, without corroboration by other evidence,

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their statements cannot be relied. Sonam (PW5) is a child and tutored witness and, therefore, her statement is also not reliable. It is further argued that the incident took place in an open place, but, despite that, the prosecution did not examine any independent witness. The Appellant has been falsely implicated in the case.

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6. Learned Counsel appearing for the Respondent/State supported the impugned judgment and submitted that considering the entire evidence available on record the Trial Court has rightly convicted the Appellant. Though the eyewitnesses of the incident are relatives of the deceased, only on this ground their statements cannot be disbelieved.

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7. We have heard the rival contentions put-forth on behalf of the parties and perused the entire evidence both oral and documentary with utmost circumspection.

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8. The first question for consideration is whether the death of Sakshi alias Foni was homicidal in nature?

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9. The Trial Court, after appreciation of the medical evidence on record, particularly, the statement of Dr. Devesh Pradhan (PW21) and taking into account the Post Mortem Report

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(Ex.P46), has rightly come to the conclusion that the death was homicidal in nature. This finding is a pure finding of fact based on the evidence available on record and the finding is neither perverse nor contrary to the record. Even otherwise, it has not been seriously disputed by Learned Counsel for the Appellant that the death was homicidal in nature. In view of the above, we hereby accept and hold that the death was homicidal in nature and we also hereby affirm this finding.

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10. The next question for consideration is whether the Appellant is the person who committed the crime in question?

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11. Conviction of the Appellant is based on the testimony of the eyewitnesses Sonam (PW5) and Amrautin Bai (PW6). Sonam (PW5) is younger sister of the deceased and Amrautin Bai (PW6) is aunt of the father of the deceased. The Trial Court has also found that pursuant to the memorandum statement of the Appellant (Ex.P26), seizure of the weapon of assault, i.e., the sickle was made vide Ex.P20 and according to the opinion (Ex.P48) given by Dr. Devesh Pradhan (PW21) after examination of the seized sickle the injuries sustained by the deceased could be caused by the seized article and on these grounds the Trial Court has convicted the Appellant.

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12. Sonam (PW5), a 6 years old child eyewitness, who was

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considered by the Trial Court to be competent to understand questions and make statement before the Court, has deposed that deceased was her elder sister. She has deposed that while their return from the market to their house the Appellant chased them and he caught hair of the deceased and assaulted her with a sickle on neck, chin and above ear. This witness ran to her house and told the incident to her mother. Injured Sakshi alias Foni (the deceased) came after her and asked her mother to save her telling that the Appellant had pierced her neck and thereafter she fell on the chabutara (a sitting platform). Villagers came there and injured Sakshi died. The above statement of this witness has not been duly rebutted during her cross-examination.

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13. Amrautin Bai (PW6), other eyewitness, has deposed that when she came out of her house, she witnessed the Appellant assaulting on neck of Sakshi alias Foni with a sickle . When the Appellant saw this witness he threw the sickle and ran away from the spot. Injured Sakshi calling her mother went towards her house. This witness has stated that the place of occurrence was at a distance of 10 steps away from her house. This witness also went after injured Sakshi after closing her house. She witnessed that Sakshi died after 10 minutes at the place where she had fallen down. She has also deposed that when the Appellant had assaulted Sakshi, her

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younger sister Sonam had run away from there. In crossexamination, this witness has denied the suggestion that no incident had taken place in front of her house. She has also denied the suggestion that she had not witnessed the Appellant at the time of occurrence. The statement of this witness has not been duly rebutted during her crossexamination.

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14. Manju (PW7), mother of the deceased, has deposed that at the fateful time she was at home and had served food to her son Rajpal (PW8). At that time itself, crying, her younger daughter Sonam (PW5) came home and told that the Appellant had cut the neck of Sakshi. Running, this witness went out of home. Sakshi, calling her to save her, told that the Appellant had pierced her neck and she fell down near the choura (a sitting platform) and she died there after 10 minutes. She was smeared with blood and her neck was completely cut, head was cut, chin was cut and two fingers had cut. Rajpal (PW8), brother of the deceased, has deposed in similar fashion.

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15. Santosh Chaturvedi (PW1), father of the deceased, has deposed that at the fateful time he was in village market and his son Rajpal (PW8) had come to call him and told that the Appellant had assaulted his daughter Sakshi. He reached

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near his house and saw Sakshi there smeared with blood. Her neck was cut, chin was cut and a cut was present above her ear. She was breathing. She remained alive for about 10 minutes. Villagers had come there. A telephonic call was made in Police Station Hirri. Police reached there. Police recorded his statement at the spot. Dehati Morgue Intimation (Ex.P1) was recorded there. Dehati Nalishi (Ex.P2) was also recorded. Spot map (Ex.P3) was prepared. He has stated about other formalities.

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16. In Mohabbat and others v. State of Madhya Pradesh, 2009

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AIR SCW 1486 , Hon’ble the Supreme Court has held that relationship per se does not affect the credibility of witnesses merely they being relatives of the victim of the crime. In the instant case, the eyewitnesses are natural witnesses, they appear to be trustworthy and their evidence inspire confidence of the Court.

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17. It is quite vivid that the eyewitnesses have supported the case of the prosecution. Both the eyewitnesses remained firm during their cross-examination. The ocular evidence is supported by medical evidence and query report. Both Dehati Morgue Intimation (Ex.P1) and Dehati Nalishi (Ex.P2) also contain the name of the Appellant as the assailant. From the appreciation of the evidence available on record, we hold that

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the Trial Court has rightly convicted the Appellant. We do not find any ground to interfere with the sentence imposed upon the Appellant.

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18. Consequently, the appeal is dismissed . The impugned judgment of conviction and sentence is affirmed.

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19. Records of the Trial Court be sent back along with a copy of this judgment forthwith for necessary compliance.

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Sd/Sd/( Sanjay K. Agrawal ) (Sanjay Kumar Jaiswal) Judge Judge

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Gopal

Ajay Kumar Mehar v. State Of Chhattisgarh

Case brief

What is this about?

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Ajay Kumar Mehar v. State Of Chhattisgarh

Case brief

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