||;!:|. lil;3 iini ii». HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: Coram: HON'BLE MR.T.P.SHARMA & HON'BLE MR.R.N. CHANDRAKAR, JJ. Criminal Appeal No. 1462 of 1995 Appellant/ Gariba S/o Vishambhar, a^ed about 30 years, occupation - Majduri, R/o Gram Parkhanda, -Thana Kurud, Tahesil Dhamtari, District Raipur Respondent Versus State of Chhattisgarh Through Station - Raipur, Distt. (Chhattisgarh) Police Raipur (CRIMINALAPPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mr. Abhay Tiwari, counsel for the appellant. Mr. Akhil Mishra, Dy. Govt. Advocate for the State. JUDGMENT (Passed on 13th September, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 02.09.1995 passed by the Additional Sessions Judge, Dhamtari, in Sessions Trial No.48/1995, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of eulpable homicide amounting to murder of Shambhudas, 'Kotwar (since~de''ceased), convicted under Sections 302 of the I.P.C. and sentenced him to undergo impTrsonment for life and to pay fine of Rs.500/-, in default of payment of fine to further undergo R.l. for 1 year and acquitted co-accused Tiharu, brother of the appellant. A SSSI B 2. Gonviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per the case of prosecution, on fateful day of 05.11.1994 at about 2:00 pm Water'festival was being celebrated. Appellant and his brother Tiharu, who were having grudge against PW/1-Chhabilal (sarpanch) that on account of heavy rain their house has been destructed and he is not paying compensation to the appellant. Appellant and his brother were moving to kill Chhabilal (PW/1) then appellant told deceased and suggested to kill Sarpanch, after his refusal, appellant caused repeated assault by sword over his neck and other part of body resulting instantaneous death of Shambhudas on the spot. Witnesses were present on the spot who have seen the incident. PW/1-Chhabilal Patel went to police station and lodged F.I.R. vide Ex.P/1 within 2:45 hours of the incident. Investigating officer left for scene of occurrence, after summoning the witnesses vide Ex.P/2, inquest over dead body of deceased Shambhudas was prepared vide Ex.P/3. Spot map was prepared vide Ex.P/4. Dead body of deceased was sent for autopsy to Govt. Hospital.Kurud vide Ex.P/19. Dr. Pradeep Hisikar (PW/10) conducted autopsy vide Ex.P/15 and found following injuries:- i) lpcisedwoundoverleftparietalregionof2"x%"xyz". ii) . /Two small wounds over left side of face near left eye of 1/z "x y," iii) iv) V) One incised woynd over left side of the neck of 6"x2"x2". Internal artery, veins, mussels, cervical vertebra were found cut. Incised wound of 3"x % "x1" over the neck. Thyroid trachea was found cyt. 6. Mode of death was shock and Injuries were anti-mortem in nature. ' During the course of ihvestigation, appellant/accused was taken into in^BWiRgiwwx" 'fc^ custody. He made disclosure statement of clothes vide Ex.P/5 and same has been recovered at his instance vide Ex.P/7. Co-accused Tiharu has also made disclosure statement of clothes and same has been recovered at his. Appellant made disclosure statement of sword vide Ex.P/9 and same has been. recovered at his instance vide Ex.P/10. Other clothes of human were seized vide Ex.P/11 and Ex.P/12. Blood stained soil and plain soil were recovered from the spot vide Ex.P/14. 4. Statements of the witnesseswere recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code'). After completion of investigation,charge sheet was filed before the Court of Judicial Magistrate First Class, Dhamtari, who in turn committed the case to the Court of Sessions, Raipur from where the learned Additional Sessions Judge, Raipur received the case on transfer for trial. 5. In order to prove the guilt of the ac.cused/appellant, prosecution has examined as many as 13 witnesses. Statement of the accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 6. After providing opportunity of hearing to the parties, learned Additional Sessfons Judge, convicted & sentenced the appellant as aforementioned,/ / - 7.. We have heard learned couns^ for the parties, perused the judgment impygned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that as per the case of prosecutibn and evidence adduced on behalf prosecution, (^) appellant was poor person of village Parkhada. His small hut (house) fell down as a resulf of heavy rain. Appellant was moving here and there for compensation but public authority including PW/1-Chhabilal (Sarpanch) and deceased Shambhudas <Kotwar) were avoiding such payment of compensation and they were enjoying the festival. In such circumstances, appellant caused aforesaid injuries on sudden provocation and act attributed to the appellant does not travel beyond the scope of Section 304 Part-1 of the IPC. He also submits that present appellant is in custody for more than 7 years (from 08.11.1994 to 09.01.2003) and is on bail. Sentence undergone by the appellant would be adequate sentence in the present case. 9. On the other hand, learned Dy. Govt. Advocate for the State opposed the appeal and submits that as per the case of prosecution and defence taken by defence, house of the appellant fell down during the course of rain in rainy season. His house did not fall down on the date of incident and there were no occasion for such annoyance. Evidence adduced on behalf of prosecution clearly reveals that on the day of 'Matar' festival appellant was movi.ng in the village, he was holding sward to kill PW/1- Chhabilal Patel, Sarpanch. He also tried to take help of deceased Shambhudas for causing such injury to PW/1-Chhabilal. Being refused by deceased thenappellant caused aforesaid injuries to him, which shows thata^pellant has caused homicidal death of deceased with intent to cause his death. •a*>- 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. w ^?-!^ iaa-ai; 11.1n the present case, homicidal death as a result of fatal injuries found over the vital part neck of the deceased Shambhudas has not been substantially disputed on behalf of the appellant; even otherwise same is also established by the evidence of Dr. Pradeep Hisikar (PW/10) and autopsy report Ex.P/15 that degth of deceased was homicidal in nature. 12.As regard complicity of the appellant in the crime in question is concerned, conviction of the present appellant is substantially based on evidence of eye witnesses Pawan Kumar (PW/2), Shyam Das (PW/3), Ram Sai (PW/4), Shobha Ram (PW/8), Kuleshwari Bai (PW/9) and Bishat Ram (PW/12). On the day of 'Matar' festival appellant was moving with his brother Tiharu and appellant was holding sword. They were talking with each other that they will kill Sarpanch, which was opposed by deceased Shambhudas and advised the appellant that it would not be proper to quarrel on the day of festival then appellant and his brother abused him and appellant assaulted deceased by sword over his face and neck. Deceased fell down and died. This fact is well corroborated by the evidence of Pawan Kumar (PW/2), Shyam Das (PW/3), Ram Sai (PW/4), Shobha Ram (PW/8), Kuleshwari Bai (PW/9) and Bishat Ram (PW/12). Defence has cross-examined these witnesses at length but has not been able to elicit anything in their cross-examination tp discredit their testimony especially to the extent that they have/not seenthe incidsnt and appellant has not caused multiple injuries over face an3frneck of deceased resulting into his instantaneous death. Aforesaid evidence is sufficient to establish the fact that appellant has caused homicidal death of deceased. Ife ^ ^/ ..-•?' 13.As regards the question of motive, in case of direct evidence motive losses its importance, even otherwise, motive only aids in criminality and can be inferred on the basis of nature of injury, kind of weapon used, part ofthe body effected and othersimilar circumstances. 14.1n the present case, as per the seizure witnesses and defence taken by appellant, on account of falling down the house of the appellant in rainy season and non payment of compensation, appellant was unhappy with PW/1-Chhabilal (Sarpanch) and other persons. On the day of 'Matar' festival appellant was searching Sarpanch for causing injury to him. Appellant also requested deceased tocause injury to sarpanch and kill, after refusal by deceased present appellant has caused five multiple fatal injuries to deceased resulted ihto his instantaneous death. This fact is sufficient to establish'that appellant has caused homicidal death of deceased with intent to cause his death. 15. After appreciating the evidence avajlable on record, the learned Additional Sessions Judge has convicted and sentenced the appellant as aforementiondd. 16. On close scrutiny of the evidence adduced on behalf of the prosecution, we do not find any illegality or infirmity in convicting and sentencing the appellant. .17. Consequently,/ the appeal being devoid of merits is liable to be dismissed and is hereby disrq^sed. Present appellant is onbail, He is dirgcted to surrender before the Additional Sessions Judge, Dhamtari, for serving remaining sentence imposed upon him. 'ay Sd/- , T.P. Sharma ^.' ' " Judge Sd/-