Conviction appeal for murder of Parvati Bai, killed with an axe after being branded a witch. Court affirmed the trial court's finding that eyewitness testimony corroborated by post-mortem evidence proved the appellant's guilt and dismissed the appeal.
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(Cr. A. No. 679 of 2018)
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRIMINAL APPEAL NO. 679 OF 2018
{Arising out of Judgment & Order dated 27.3.2018 passed by Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj in Sessions Case No.31 of 2011}
Kulwant Sahu, S/o Tulshi Ram Sahu, aged about 19 years, R/o Village Hardibahra, Police Chowki Balangi, Police Station Raghunath Nagar, District BalrampurRamanujganj (C.G.)
... Appellant(s)
Versus
... Respondent(s)
| ____________________________ For Appellant |
______________________________ :- Mr. A.N. Pandey, Advocate. |
|---|---|
| For Respondent/State | :- Mr. Afroz Khan, Panel Lawyer. |
_________________________________________________________ Division Bench
Hon'ble Shri Justice Sanjay K. Agrawal Hon'ble Shri Justice Sanjay Agrawal
Judgment on Board [24.06.2024]
Sanjay K. Agrawal, J.
1. Invoking criminal appellate jurisdiction of this Court
under Section 374(2) of the Code of Criminal Procedure, 1973 (in short, CrPC), the present criminal
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appeal has been preferred by the appellant, Kulwant Sahu, calling in question the legality, validity and correctness of the judgment & order dated 27.3.2018 passed in Sessions Case No.31 of 2011 by learned Additional Sessions Judge, Ramanujganj, District Balrampur-Ramanujganj (Trial Court), whereby the appellant stands convicted for the offence punishable under Section 302 of IPC and sentenced thereunder to suffer Imprisonment for Life and to pay fine of Rs.5000/- in default whereof, to suffer additional Rigorous Imprisonment for Two years.
2. There were total five accused persons in the instant case, i.e., the appellant Kulwant Sahu, his father Tulsiram, uncle Sitaram and mother Saraswati including one Bholaram (who died during the pendency of the trial, who were tried before the Trial Court in the aforesaid Sessions Case for the offence punishable under Sections 148, 302/149 of the Indian Penal Code, 1860 (in short, IPC) as well as under Sections 4 & 5 of the Chhattisgarh Tonhi Pratadna Nivaran Adhiniyam, 2005 (in short, Adhiniyam) on the charges of committing rioting armed with deadly
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weapon and, in furtherance of their common intention, committing murder of Parvati Bai (deceased) by assaulting her with axe ( tangi ) after identifying her as a witch ( tonhi ) on 22.7.2010 at about 1:30 pm in Village Hardibahra under the jurisdiction of Police Outpost Balangi of Police Station Raghunath Nagar.
3. A brief factual aspect of the prosecution case is that PW-2 Lalji, husband of deceased Parvati Bai, lodged Merg (Exhibit P-1) intimating at Police Outpost Balangi that on 22.7.2010, at about 5:30 am, he had gone to his cow shed where he found some cattle sitting and he pushed away those cattle towards the house of one Ramdas. Subsequently, at about 9:00 am, when he was doing agriculture work in his field, his wife (deceased) told him that she had heard Tulsiram (acquitted accused) complaining to PW-6 Shivprasad (husband of the Village Sarpanch) about his corn crops eaten by the cattle belonging to him (PW-2 Lalji) and for that reason he was threatening to assault them. PW-2 Lalji then went to PW-6 Shivprasad who confirmed the said news. However, neglecting the said threat, PW-2 Lalji went to the
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Balangi market where between about 1:30 to 2:00 pm he was informed by his nephew Chandrika Sahu that the appellant Kulwant Sahu killed the deceased by axe. Hearing that, when PW-2 Lalji returned home, he came to know that when the deceased had gone to their cow shed to give water to the calf, at that time the appellant Kulwant Sahu reached there armed with axe by which he assaulted the deceased resulting to her death and then ran away from the spot towards the forest. The said incident was witnessed by PW-4 Usha Devi, PW-5 Sonamati and PW-10 Lilavati.
4. On the basis of Merg Intimation (Exhibit P-1), investigation was started by A.S.I., S.R. Porte (PW-12). During investigation, in presence of the witnesses summoned, sketch map of the place of incident was prepared vide Exhibit P-6, Inquest panchnama was conducted vide Exhibit P-4 and the dead-body of deceased Parvati Bai was subjected to post-mortem examination which was conducted by Dr. R.B. Prajapati (PW-14) vide Exhibit P-18 in which cause of her death was opined to be syncope caused by multiple injuries (cuts & fractures of bones) which
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were homicidal in nature. Vide Exhibit P-7, an iron axe and a jeans pant, both stained with blood like reddish spots, were seized from the appellant. Vide Exhibit P-5, blood mixed earth as well as control earth were seized from the place of incident. Vide Exhibit P-9, articles related to the deceased were seized from the hospital after her post-mortem examination. Spot Map (Exhibit P-8A) was prepared by Patwari, Sahodar Ram (PW15).
5. During investigation, it was also discovered that at the time when the deceased had gone to her cow shed to give water to the calf, the appellant Kulwant Sahu armed with axe and other acquitted accused persons surrounded her and the another accused Bholaram instigated the appellant Kulwant Sahu to kill the deceased who then was killed by the appellant assaulting her with axe by which she suffered grievous injuries and died and then the appellant ran away from the spot towards the forest area. The motive of the offence of murder of the deceased that came to fore during investigation was the suspicion of the accused persons on the deceased of she being a witch
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caused death of the brother of the appellant, namely – Surendra Sahu, who died after consuming poisonous substance, and also the eating of the corn crops of their field by the cattle belonging to the deceased. Subsequently, a numbered FIR bearing Crime No.67/2010 was registered vide Exhibit P-2 at Police Station Raghunath Nagar. The arrest of the accused persons was made vide Exhibits P-10, P-11, P-12 & P-13.
6. After due investigation, since one of the accused person, i.e., Bholaram was absconding, initially the charge-sheet was filed only against the other accused persons including the appellant herein before the concerned Magistrate who took cognizance on the charge-sheet and the case, being exclusively triable by the Sessions Court, was committed to the court of Sessions for trial. Subsequently, the absconding accused Bholaram was arrested, charge-sheeted before the Magistrate and tried before the Trial Court in the said Sessions Case. The accused persons appeared before the Trial Court where charges were framed against them under the aforesaid offences to
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which they denied and claimed to be tried. During trial, accused Bholaram died during pendency of the trial.
7. In order to prove its case, the prosecution examined as many as 16 witnesses as PW-1 to PW-16 and exhibited 18 documents vide Exhibits P-1 to P-18. After closure of the prosecution evidence, statement of the accused persons was recorded under Section 313 of CrPC in which they denied the circumstances appearing against them in the evidence of the prosecution, pleaded innocence and false implication. In support of its case, the defence also examined the accused Sitaram as DW-1 and relied on 11 documents vide Exhibits D-1 to D-11.
8. Ultimately, the Trial Court, after a full-fledged trial, by impugned judgment & order dated 27.3.2018, while acquitting the three accused persons - Tulsiram, Sitaram and Saraswati, of all the charges on the basis of benefit of doubt and also acquitting the appellant herein of the charges under Section 148 of IPC and Section 4 & 5 of the Adhiniyam, held him guilty only of the offence under Section 302 of IPC and accordingly
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convicted and sentenced him as mentioned in paragraph-1 of this judgment, which led to filing of the present criminal appeal by the appellant.
9. Mr. A.N. Pandey, learned counsel appearing for the appellant, would submit that the Trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Section 302 of IPC, as the alleged eye-witnesses in the instant case are the relatives of the deceased and therefore they are interested party. He would further submit that the seizure of axe has not been made pursuant to the memorandum statement of the appellant and the seizure witnesses have also not supported the case of the prosecution at all and the seized axe also has not been forensically examined for the blood spots allegedly found on it. He thus prayed for the appellant to be acquitted of the said offence and the appeal be allowed accordingly.
10. Mr. Afroz Khan, learned Panel Lawyer appearing for the State, would however support the impugned judgment & order and submit that the prosecution has been able to bring home the offence beyond
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reasonable doubt and the Trial Court has rightly convicted the appellant for the offence punishable under Section 302 of IPC on the basis of eye-witness account supported by the medical evidence which have come on record. The appellant therefore does not deserve for acquittal and the appeal is liable to be dismissed.
11. We have heard learned counsel for parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.
12. The first and foremost question, as to whether the death of deceased Parvati Bai was homicidal in nature, has been answered by the Trial Court in affirmative relying on the statement of PW-14 Dr. R.B. Prajapati who has conducted the post-mortem examination of deceased Parvati Bai and also supported the postmortem report (Exhibit P-18) in which cause of her death has been opined to be syncope caused by multiple injuries (cuts & fractures of bones) and the nature of her death has been stated to be homicidal, which, in our considered opinion, is correct finding of fact based on evidence available on record and which
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is neither perverse nor contrary to the record. We, accordingly, affirm the said finding of the Trial Court, holding that the death of deceased Parvati Bai was homicidal in nature.
13. Now, next the question is, as to whether the appellant is author of the crime?
14. Conviction of the appellant is primarily based on the ocular evidence of PW-4 Usha Devi, PW-5 Sonamati and Lilawati, who have been projected as eyewitnesses by the prosecution and accepted by the Trial Court to hold the appellant guilty of the offence of murder of the deceased, supported with the medical evidence of Dr. R.B. Prajapati (PW-14) who has conducted the post-mortem examination of deceased Parvati Bai and found multiple injuries on her body opining the nature of her death to be homicidal.
15. PW-4 Usha Devi has clearly stated in her statement before the Court that at the time of offence she was plucking corn in her field along with PW-5 Sonamati and PW-10 Lilavati and at the same time when Parvati Bai (deceased) was going her cow shed to give water to calf, the appellant came out of his house armed with
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axe and assaulted the deceased by the said axe on account of which she suffered grievous injuries and died. The appellant then ran away form the spot towards the forest and the other accused persons (who have been acquitted by the Trial Court including the one who died during the pendency of the trial) were also present at the spot. Similar is the statement of PW-5 Sonamati, who was also present at the spot at the time of incident along with PW-4 Usha Devi. Likewise, PW-10 Lilavati, supporting the statement of PW-4 Usha Devi and PW-5 Sonamati, has clearly stated that the appellant had come at the spot armed with an axe and assaulted the deceased with the said axe resulting to her death. The said witnesses (PW-4, P-5 & P-10) were subjected to some extent of crossexamination, but the defence has not been able to extract anything substantial from their crossexamination so as to disbelieve their testimony and hold that the appellant had not assaulted the deceased Parvati Bai with axe by which she suffered multiple injuries on her body and ultimately succumbed. The allegation of interestedness of the
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said witnesses has not been established. Merely because the fact that PW-2 Usha Devi, PW-4 Sonamati and PW-10 Lilavati are related to deceased Parvati Bai, the allegation of they being relatives of the deceased are likely to falsely implicate the appellant cannot be a ground to discard their evidence which is otherwise cogent and credible.
16. PW-14 Dr. R.B. Prajapati, who has conducted the post-mortem examination of deceased Parvati Bai and has also proved the post-mortem report (Exhibit P-18), found multiple injuries on the body of the deceased as herein under:-
“ 1. Incised wound 7cm x 2cm x 6cm on right side of neck longitudely oblique from anterior to posterior direction, red in colour, under the sternocleidomastoid muscle and carotid sheath containing carotid artery, common jugular veins and vagus nerve, were found cut and dried blood spots near wound present.
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containing carotid artery, jugular veins and vagus nerve were found cut oblique in direction from anterior to backward in direction, ante mortem in nature, red in colour, caused by hard & sharp object under the esophagus supralaryngeal pharynx, hyoid bones were found fractured and dried blood spots near wound present.
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sharp object, ante mortem in nature and dried blood spots near wound present.
Opinion: The mode of death is syncope caused by multiple injuries (cuts & fractures of bones). The time passed since death is about 36 hours. Homicidal in nature. ”
17. Ocular evidence to be disbelieved only when medical
evidence rules out all possibilities of ocular evidence being true. In the instant case, the ocular evidence of PW-4 Usha Devi, PW-5 Sonamati and PW-10 Lilavati, receives corroboration from the medical evidence of PW-14 Dr. R.B. Prajapati. Though, in the case on hand, weapon of offence i.e. axe and clothes were seized at the instance of the appellant, but without recording of his memorandum statement and the seizure witnesses also did not support the recovery part, even then, merely on the basis of the fact that the recovery of the weapon of offence not being made pursuant to the memorandum statement of the accused appellant and the recovery also not being
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supported by the seizure witnesses, it would not affect the prosecution case and would not benefit the appellant as there is ample unimpeachable ocular evidence corroborated by medical evidence to connect him with the crime in question. Further, as regards one of the contentions of learned counsel for the appellant that the seized axe and clothes were not subjected to forensic examination, from paragraph-56 of the impugned judgment, it is clear that the seized axe and clothes of the appellant were subjected to forensic examination and in the Forensic Science Laboratory’s report received there was blood found on both the seized articles. However, since the said forensic report could not be put to the accused appellant as an incriminating circumstance to state or explain under Section 313 of CrPC, it has rightly been excluded by the Trial Court from its consideration.
18. Thus, in view of the ocular evidence of PW-4 Usha Devi, PW-5 Sonamati and PW-10 Lilavati, which receives corroboration from the medical evidence of PW-14 Dr. R.B. Prajapati, we are satisfied beyond reasonable doubt that it is the appellant Kulwant
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Sahu who had in fact assaulted the deceased Parvati
Bai with axe by which she received multiple injuries, as mentioned herein above, which resulted to her death and thus he is the author of the crime, for which the Trial Court has rightly held him guilty of the offence punishable under Section 302 of IPC for committing murder of deceased Parvati Bai.
19. In the result, we affirm the impugned judgment & order passed by the Trial Court and dismissed the present criminal appeal filed by the appellant.
Sd/- Sd/- (Sanjay K. Agrawal) (Sanjay Agrawal) Judge Judge
sharad
2 issues framed by the court
Whether the death of Parvati Bai was homicidal in nature.
Whether the appellant Kulwant Sahu was the author of the murder despite interested eyewitnesses and a defective seizure of the weapon.
5 provisions across 3 enactments
Kulwant Sahu
State of Chhattisgarh
Sanjay K. Agrawal
Sanjay Agrawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
