Chattisgarh High Court
Roshan Bek vs State Of Chhattisgarh on 6 July, 2023
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No.930 of 2021
Roshan Bek S/o William Bek Aged About 35 Years R/o Village
Dumarkhola Linepara Chowki Doura, P.S. Pasta, District
Balrampur Ramanujganj Chhattisgarh., District : Balrampur,
Chhattisgarh
---- Appellant (In Jail)
Versus
State Of Chhattisgarh Through Police Station Pasta, District
Balrampur Ramanujganj Chhattisgarh., District : Balrampur,
Chhattisgarh
---- Respondent
For Appellant : Shri Bishnu Muni, Advocate
For Respondent/State : Shri Trivikram Nayak, Panel Lawyer
D.B.: Hon'ble Shri Justice Goutam Bhaduri &
Hon'ble Shri Justice Sanjay S. Agrawal
Order on Board
Per Goutam Bhaduri, J.
06.07.2023
1. This present appeal is against the impugned judgment of conviction and order of sentence dated 23.07.2021 passed by the Second Additional Sessions Judge, Ramanujganj in Sessions Trial No.97/2018, whereby the appellant has been convicted and sentenced as below:-
CONVICTION SENTENCE Under Section 302 of the Life Imprisonment and fine of Rs.500/-, and in IPC default of payment of fine, additional R.I. for two months
2. The prosecution case, in brief, is that a report was lodged by Sanjay Palhe, PW-1 in the Police Station that on 03.06.2018, his wife 2 Phulmaniya, the deceased, went for bath along with her son Aman at canal named Sarpdaha at 7 AM and his son came back and informed that the neighbour Roshan Bek, the appellant herein drowned his mother by throttling, resultantly, the mother died. Thereafter, the appellant fled away. Husband of the deceased thereafter came at the spot and found that his wife was dead. It was further stated in the report that the appellant-accused has committed eve teasing with Phulmaniya, the deceased, for which, panchayat was also convened in the village. Thereafter, on 02.06.2018, the appellant wanted to talk with Phulmaniya, having refused subsequently, this act was done. Merg intimation was lodged and dead body was subjected to postmortem and in the postmortem report, death was shown by throttling and drowning. In continuation of investigation, statement of witnesses were recorded and FSL report was also obtained. After completion of entire investigation, charge sheet was filed under Section 302 of the IPC. During the course of trial, the appellant abjured his guilt and claimed to be tried. The prosecution examined as many as 14 witnesses and after evaluating the evidence, convicted the appellant as aforesaid. Hence, this appeal.
3. Learned counsel for the appellant would submit that the conviction of the appellant is solely based on the statement of Aman (PW-2), son of the deceased, which would show that he has not disclosed this fact to anyone, except his father, therefore, major contradiction exists. It is further submitted that the eye-witness has 3 turned hostile, therefore, the statement cannot be believed. It is also submitted that the FSL report whereby bone and water was examined, which is vague and only positive report was submitted which would not lead the guilt to be proved. It is also submitted that so-called eye- witnesses, Nadhira (PW-5) and Phulbasiya (PW-6) have also not supported the case of the prosecution, therefore, the learned trial Court only on the basis of presumption, convicted and sentenced the appellant as aforesaid and the instant appeal deserves to be allowed.
4. Per contra, learned counsel for the State would submit that the postmortem report of the deceased would show that the death was caused due to drowning and asphyxia. It is further submitted that the external examination of the dead body proves that the tongue was protruded which leads to prove cause of death. It is also submitted that there is an eye-witness of the incident i.e. Aman (PW-2), son of the deceased, therefore, the quality of the evidence of Aman, PW-2 cannot be discarded and the conviction of the appellant is well merited and does not call for any interference.
5. We have heard learned counsel for the parties and perused the record carefully.
6. The merg intimation (Ex.P-1) in this case was lodged on 03.06.2018 i.e. on the date of incident at about 09.30 AM. The incident was stated to be at 7 AM. Merg intimation was lodged by Sanjay Palhe, (PW-1), the husband of the deceased. Report of the merg intimation would show that it was disclosed by his son-Aman, who went along with 4 his mother to take bath in the canal named "Sarpdaha". It was informed by his son that the appellant-accused caught hold of her neck, drowned his mother in the canal water till she died. The husband after the incident went to spot and took out the body from the water and found that his wife has died. Sanjay Palhe (PW-1) has corroborated this fact that at 7 AM, his wife along with his son went for taking bath in the canal and the appellant came there, caught hold of his wife and drowned her in the water till she died. The disclosure of Sanjay Palhe (PW-1) was on the basis of information given by his son-Aman (PW-2). This statement would further show that 5 years before to the date of incident, the appellant-accused had committed eve teasing with his wife and therefore, a Panchayat was convened in the Village and the appellant was warned not to repeat this act. This witness has turned hostile and was cross-examined. In the cross-examination, this witness stood and admitted the fact that prior to the date of incident, the appellant-accused has committed eve teasing with his wife and Panchayat was also convened in the Village as the appellant wanted to keep declared as his wife by force and used to tease her, whenever she found alone he used to extend threat to her that he would not allow her to stay with anyone else. In the cross-examination, this witness has stated about the past incident and omission was recorded, but, the witness has narrated the fact of date of incident and the happening of the incident, which was disclosed by his son. Certain suggestions were also given to the witness to attack the character of the deceased as to 5 whether she was having relation with any other male person in the village, but, it was denied by him. Suggestion to the fact that the deceased was suffering from epilepsy, was also denied. In the cross- examination, further suggestion was given that on the date of incident, when his wife went for taking bath, son-Aman did not accompany her, but, such suggestion was denied, which would lead to show that on the fateful day, the deceased went along with her son.
7. The postmortem report filed as Ex.P-15 and the same was proved by Dr.Umesh Vishwas (PW-13). According to Dr. Umesh Vishwas (PW-13), cause of death was due to drowning and lack of oxygen and to confirm the nature of death, the FSL report was referred. A perusal of the postmortem report would show that mixed blood was present in the nose and mouth and tongue was protruded and redness was found on the neck. According to Dr. Umesh Vishwas, PW-13, cause of death was due to drowning and asphyxia.
8. Eye-witness Aman (PW-2), aged about 12 years, stated that he knows the appellant-accused and deceased was his mother. He states that at 7 AM, he went for bath along with his mother at Sarpdaha river and the appellant-accused caught hold of his mother by neck and drowned her and this fact was disclosed to his father Sanjay Pilhe, (PW-1). This witness was declared hostile and in the cross- examination, he admits the fact that while washing her clothes, at that time, the accused came and asked her to accompany, thereafter, having refused by her, he forcefully tried to drag her and when she 6 resisted, the accused caught hold of her neck and drowned into the water. This witness has stated that he disclosed this fact to his father, who also corroborates the said fact. In the cross-examination, suggestion was given to this witness that on the date of incident, he had not accompanied his mother, but, the said suggestion was denied.
9. The fact that the prosecution witness Aman (PW_2), who was an eye-witness, has declared hostile and was cross-examined by the prosecution, appears to have stated the incident, which was also corroborated by the statement recorded under Section 164 Article-2 of the Cr.P.C. placed on record, wherein he also confirmed the fact that the appellant-accused also caught hold of his mother and drowned her into the water and thereafter, fled away and this fact was disclosed to his father.
10. The principles laid down by the Supreme Court in the matter of Lella Srinivasa Rao vs. State of A.P., reported in (2004) 9 SCC 713, that the testimony of hostile witness does not result automatic rejection if it finds corroboration from the facts of the case and it may be taken into account. Similar proposition has also been laid down by the Supreme Court in the matter of State of Rajasthan vs. Bhawani and another, reported in (2003) 7 SCC 291, that to evaluate the statement of a hostile witness, the Court should look for corroboration to his evidence.
11. In the instant case, after the incident on 03.06.2018 at 7 AM, the merg intimation was lodged at 09.30 AM by the husband of the 7 deceased and father of eye-witness Aman (PW-2). The statement of Sanjay Pilhe, PW-1 maintained the stand, which remained unrebutted that the incident was disclosed by his son about causing death by forcefully drowning.
12. Nadhira, (PW-5) and Phulbasiya (PW-6), who are also stated to be the witnesses of the incident, have turned hostile. The statement of eye-witness Aman (PW-2), son of the deceased that his mother was caught hold by the accused by her neck and forcefully drowned her into the water, is established.
13. The Supreme Court in the matter of Kuna alias Sanjaya Behera vs. State of Odisha, reported in (2018) 1 SCC 296, has held that the conviction can be based on a testimony of a single eyewitness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important. The evidence must be weighed and not counted, decisive test being whether it has a ring of truth and it is cogent, credible, trustworthy or otherwise.
14. Here in the instant case, Aman (PW-2) is an eye-witness of the incident, who is son of the deceased, had immediately narrated the incident to his father-Sanjay Pilhe, (PW-1), who also corroborates the same, therefore, the fact that Nadhira, (PW-5) and Phulbasiya (PW-6), who have also stated to be eye-witness of the incident, turned hostile, cannot be given precedent. Apart form this fact, the statement of Sanjay Pilhe (PW-1), husband of the deceased would show that prior to the incident, the appellant forcefully eve teasing his wife, for which, 8 panchayat was also convened in the village, which adds to the circumstantial evidence to the motive to execute the crime by the appellant-accused. Therefore, all the circumstances, which led to execution of crime, was established by the statement of Aman (PW-2), eye-witness and corroborated by the postmortem report, Ex.P-15 as also by the statement recorded under Section 164 Article-2 of the Cr.P.C. and witness though turned hostile, the statements are corroborated by all supportive facts to prove the guilt.
15. In view of foregoing, we are of the view that the no interference is called for in the impugned judgment of conviction and order of sentence. The appeal being devoid of merit, is accordingly dismissed.
SD/- SD/-
(Goutam Bhaduri) (Sanjay S. Agrawal)
Judge Judge
Tumane