WI6H COURT OF CHMATTIS6^RM AT BILASPUR Criminat AMMI No.288 <rf 20)4 APPELb^NT ACCUSED fln Jaill RESPONDENT 6anpat Kcxnwar S/o 6hBrau Rani Kanwar, aged 65 years, resident of Kuchaina, P.S. Kusmunda, Disn; Korba (C.B) Stat® of Chtiattisgarh. Through: P.S. Kusmunda, &istt. Xorba (C.&). (^ppealunclep&c*ion374of^Ojdeof€rlminalProcedur») ^l^sfonsBwich: l-ton'bl®Mr. T.P.Sharma & Monlalc Mr. N.K Aaaniurf. JJ; Pr®sents Shri K.K. Singlt. counselfop 1h®flppctten*. Shri Ashish Shukla. 6ovt. Adwcate for l^e Stffte/ w^ondent. X3RAL JU06MENT (Passed on 26th day of RAruary, 201Q) Pw T.P. Sharma. J. Challenge in •thisappeal is to the judgiifiait af convictionond ordei* of sentence dated 16-01-2004 passed by SessionA Judge Bilaspur (Chhatt-isgarh) in S.T. No.166/2002 wheNsby and whemiunder leamed Sessions Jud^ aftep hotding thc oppclfant guilty for the offenoe of culpabte homicide amountfftg to muBrf<r of Sant Ram (deceaaed) convicted the appelkmt undw Saetion 302 of the Indian Penal Code (for ^horl'the IPC') and sentenGed him to undergo imprisonment for life wid to poy a fineoffts.lQGlO/-, m default, additional rigoroys imprisonment for "Hiree mon'rtw^ 2. Conviction is impugned on 1f»e ground 1tiat wi'rtioyt cny totu of evidence and proof of mtention, leamed Cpurt- bel&w has convicted and sentenced the appellant as afommentjoned and •tfiereby committed illeyxlity. 3. Brief fcxcts of prosecution case we l+ia'l', the appeltcu^ wcer having inimtcal terms willi the deoeflised Sflmt Rom on ehceount of implication of son of cypelkant in a criminal case. On the fateful doy of 09-03-2002 at about 9-00 A.M., deceased Soait ftam was cookin9 wea* lm his house, other witnesses wwe also present, appellflmt entered with axe in the house of Sant Ram dnd assoMJted him by axe over his neck and caused fatat injury. Santftani dtecl instantaneously. His son Bedram (PW-6) went to the Potice Station Kusmunda and todged F.I.R. vide Ex. P-10 wid olso nrrg vide Ex. P-9. Ijivestjgating Officer left- for the scerws of occurrence and after sumnwning the witnesses vide Ex, P-6, Inquest over the body of the deceased Sant t^am was prepared vide Ex. P-7. Dead body was sent to 6ovt. Indira Hospital. Kerba vide Ex. P-H. Dr. R.K. Divya (PW-11) has conducted ayteps^ vide 6x. P-19 and found one incised wound over ^ienedtof siase 3" x 1" x reaching to left side of wind pipe. Btood vesaels, muscles flnd wtnd pip®were found cut. Mode of dea-rti was ^iockond 'rtie cteaN'i was homicidal in nature. 4. During course of investtgation aealed clothes of thc deeeaaedwos seized vide Ex. P-12. Blood stoiirwdea'id pkiin wilwas recovered from the Sftot vide Ex. P-8. The appelloOTt was taten into custody. He modte disctosure statement vide B<. P-1 and the axe was recovered at the instance of cypeltant vide &(. P-2. Axe was examined by Dr. R.K. Divya (PW-11) and opined -riiat the injury found over 1+ie body of the cteasasecl may be caysedl by axe so examined. Articles were sent for chemical examination vide Ex^ P-S. Statemenf of the witnesses were pecorded under Section 161 of Ihe Code of Criminal Procedure, 1973 (for short ^the Code') and after completion of investigation, charge ^ieet wis filed before the Judicial Magistrate First Ctass, Katghora who in tum. committed the case to itie Court of Sessions, Bibapup from whert learned Sessions Judge, received 1tie case on transfer for triaL 5. Accused also examined defence witness Arnwn Ali to prov^ the guiJt that he also heard that somebody el<»killed Sant Ram whjle he was present in his house, 6. 3>i order to prove 1+te guilt of the cppellcn*, proseeutton examhwd o«many as 11 witnesses. Accu«dwas examJned under Section 313 of the Code where he denied Ifie circumstances appearing against him, pteaded innocence and false jinptlication. 7. After affording opporh.inity of hearir^ to the parties, jearned AdditJonaJ Sesstons Judge Gonvicted the appeltan* undei* Section 303i ef 'EPC and sentenced the cppeltant as aforementioned. 8. We hwe heard tearned wunsel for 1+ie par1ies»f»rusedthe judgment iwpugned and rocord of Court below. 9. $hri K.K. Singh, leamed counsel oppearing for the appellant, vehemently argued that presecution has not proved its c®« by adducins independent witness but in the light of evicfanwe of Rajkamal (PW-3), Durgabai (PW-4) and firtin Bai 9>W-7), he is not disputing the role ath'ibuted to 1iie appellant. He furN'ier subniits •riiiat even Ifriough case of prosBCution is admitt«d then. aet of appellant does not travel beyond 1h®scope of Sectjon 304 Pcu't-2 of the IPC especialty jn the light of single injury cauaed by a person aj^dabout 6&years* 10, On 1<w other hflaid, tecrned cmitisel flppcapirift for the State/reapondent, vehementiy oppesed the appeal and aubmltted that prosecution has proved its case beyond alt ^iadow of doiibt by adducing evidence of eye wiliiesses RajkQmal <pW<lk3), Durgabal (PW-4) and prtin Bai (PW-7). 11. As regards the conviction of the appelkxrit under Se<^'ien 302 of IPC on account of sfrigte frijury. leamcd Bovt. Advocate placed relian^'s in the matter of Maw^hai ^fe^tiaf v. Sifatv ef ^ww^, reported in (2007) 10 SCC 3S8 in whtdi the Apex Court has held 1+iat •the nature of intention has to be gathered from the weapons used, -Hie part- of th®body hit, the am<»intof force employedand tiie circumslwiGes attt?nctant upon death.In the above case, "rtie acaised had caused single blow by knife with ^. -.^ m^ % force affecting liver and inslwitaneaus death of the deasased, it was considered lliat the <»caisedhafil mtentjonatly causesd dcath of the deceased and c^mmitted the offencB punurfiable under Sect-ion 302 of the IPC. 12. In order to appreciate the cu^uments advanced on behalf of the part-ies, we have examimid the evidence adckiced on bdialf of the prosecution. 13. In the present case, homicidat deal+i as a resi.itt of ante- mortem fatal injury has not been substantially diflfutBd by the oppellant. otherwi»also esttAlished by the evidence of Or. ft.K. Oivya (PW-lt) and autopsy report- Ex. P-i9 which reveaj that ffital injury affecting -riie wind pij^ was found over 1+ie neck and dea1+i was homicidal in nature. By addudng defcncewitness Armfln Ali, defence has also admitted 1fie homicidat dealfi of dsceascd Santram. By adducing the defence witness Arman Atl, appelloBiit has tried to prove the fact -riiat he has been falsely impNcetecl in the crime in question, but this witness has not stated that whefher at 1+ie time of incident, he was pnswnt wi1+» Santram or with the flppellant. 14. As pegards complidty of the appelteit in Itie crime in question, conviction is ba^d on Ihe evidenGe of ftoij Kamal (PW-3), who has deposed that at Ihe time of incident/he wea eath'ig breod with his grand father deceased Santrann. The appeltott canw wi'tfi an axe and fluaauilted Itie <tecectfed Scntram <m his rwckaiirf fled away from th& ^iot. Durgabai 0>W"4) has also corpoborated the evidence of Rfl^j Kamal (PW-3) and Firtin Bai (PW-7) wif®of deceased has also deposed tiiat at the time ^f inctrfent, the appellant came wilh axc insjdte her house and o««aultedher husbond Sanlram by axe over his neck. The defence hfl»cross- examjned these witnesses again but it has not bcen able to elicit anything jn their cross-examination to dJscredit their testimory. Their evidence has been corroborat&d by eaeh other's evieterrce ^".^'-. "^ ^1?; ^.vf%: laie viz.. Rajtomal (PW-3), Durgabai 9>W-4) and Fi^m 8ai (PW-7). Their evidence inqalre confidence, trustworthy duid safe te reiy. After appreciating the evidcnce avaitotote on rea>rd, teamed Sessjons Judge, has convicted the appettent under Section 302 of theIPC. 15. Thjs is a case of singte injury but the droumstGOTGes of the case rewat that the appeltant who wis having gnidge u(twi the deceased. canws wi-rii axe in his house at the tjme of cooktog and eating meal, -riic deceased vwas not hokling any weopcn arid he waail helptess. Appeltant assaulted axe btew over Ihe neGk of the deceased. Wind pipe was found cut. The &tjury wsss fertal flnd as a resuttof which the deceased died on the spot then apptlfcant fted away from the spot. 16. As held by the Apex Court- in the matter of Mcawblwi ^<i6Afltf (supro), ^ie intention can ba galtiepedfrom 1ti«kind of wecyon used, -riie part- of the body hN-, the anwunt of fwrce employed and the ciraimstonces athsndent upwi cteflrtti. Tlr factum of the case of 4teniylE^»//fAa&Ata? (&ipra) wiH also eyiply to the present case, although the appellant has caused singte blow but drcumstan< S in whidi the oppelfamt has caused injury shows that he has intentionaJty caused injury to the deceased for causing his deatii. Leamed Court below has rightly Gonvicted oftd ^sntenced •riie appeltant under Section 302 of the IPC. 17. For the foregoing reasons. we do not find any substaa'ice in the cppeal, •tfierefore, th®appeal being devoid of dubstance Is Itable to be and is hereby dismissed. Kw Sd/- T.P. Sharma Judge Sd/- N.K.Agarwal Judge