HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No.1269 of 2002 APPELLANT: Ramnath Yadu Versus RESPONbENT: State of Chhattisgarh JUbGMENT FOR CONSIbERATCON Sd/- Dhirendra Mishra Judge 11.3.2009 HON'BLE MR. b.R. DESHMUKH. J Sd/- DilipRaosahebDeshmukh Judge -<^ POST FOR JUbGMENT ON ^ MARCH. 2009 lr ""5 Sd/- Dhirendra Mishra Judge <^ HIGH COUKT OF CHHATTESGARH AT BILASPUR Criminal Appeal No.1269 of 2002 APPELLANT: Ramnath Yadu, S/o Manaram Yadu, Farmer by profession, aged about 46 years, R/o Village Arjuni, P.S. Bhatapara, Dist.: Raipur, Chhattisgarh Versus RESPONDENT: State of Chhattisg^rh, Through Police Station Bhatapara, District Raipur (CG) Present: Shri b.K. Wankhede, counsel for the appellant. Shri Akhil Mishra, beputy Govt. Advocate for the State/respondent. Division Bench: Hon'ble Shri Dhirendra Mishra & Hon'ble Shri b.R. beshmukh. JJ. JUD6MENT (belivered on-^.d^March. 2009) The following judgment of the Court was delivered by bhirendra Mishra, J. 1. This Criminal Appeal under Section 374 (2) of the Cr.P.C. is directed against the judgment of conviction and order of sentence dated 21-11-2002 passed in S.T. No.437/2001 whereby learned 2nd Additional Sessions Judge, Baloda Bazar has convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine to further uhdergo R.I. for 6 months for causing homicidal death of bevnath © D.N. Yadav. 2. The case of the prosecution, in brief, is that on 10-9-2001 complainant bilip Kumar Verma was sitting in his egg shop near Government Liquor Shop Arjuni, the appellant was also sitting nearby with a Rapali (axe like sharp edged weapon), at that time deceased D.N. Yadav was going towards liquor shop. When he wished the appellant and asked about his crop, the appellant got dgitated and started arguing with the deceased. The deceased went nearby Banyan tree, the appellant followed and pushed him, as a result he fell on the ground, thereafter the appellant gave 3 blows by Rapali on his head. Blood started oozing from his head. He got fainted. He was taken to the Government Hospital, Bhatapara by a Jeep. 3. On the basis of report lodged by bilip Kumar Verma, offence under Section 307 of the IPC was registered against the appellant vide Ex.- P/l. The injured was examined by Dr. R.C. Mishra (PW-11). His medico legal injury report is Ex.-P/17-A. The injured died at 3 p.m. in the hospital whereupon merg intimation of Ex.-P/13 was registered on the basis of memo from the hospital. After registering the offence, the Police proceeded to the scene of occurrence and prepared site map Ex.- P/2. Inquest over the dead body of the deceased was prepared vide Ex.- P/4. Plain soil and blood stained soil of the place of the incident, slippers of the injured and pieces of skull bone of injured were also seized under Ex.-P/S. On memorandum (Ex.-P/6) of the appellant, weapon of offence i.e. blood stained Rapali was seized from the house of the appellant under Ex-P/7. Blood stained shirt of the appellant was seized on being produced by the appellant under Ex.-P/5. The dead body of the deceased was sent for autopsy to Community hlealth Centre, Bhatapara where br. Jagriti Agrawal conducted postmortem and gave her report of Ex.-P/lO. 4. Blood stained and plain soil, pieces of bone of skull of the deceased, blood stained Rapali, blood stained shirt seized from the appellant and blood stained clothing of the deceased were sent for chemical examination to the Forensic Science Laboratory, Raipur under Ex.-P/20. ..^-. ^ ^- Report of the FSL dated 1-3-2002 was also received and included in the record. 5. After completing the investigation, charge sheet was filed in the Court of Judicial Magistrate, 1st Class, Baloda Bazar, the same was committed to the Court of Sessions Judge, Raipur from where learned Additional Sessions Judge received the same on transfer for trial. 6. Charge under Section 302 of the IPC was framed against the appellant, who abjured his guilt. buring trial, the prosecution examined 11 witnesses in all. Thereafter, statement of the accused was recorded. The appellant denied the circumstances appearing against him in the prosecution case, pleaded innocence and false impti'cation due to animosity. He also stated that he never met the deceased. The deceased does not reside in his village. He never saw the deceased in his village. bilip Verma has lodged fatse report to implicate him. bilip had stolen waist bracelet (Kardhan). 7. Learned trial Court after hearing learned counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph-1 of the judgment. 8. Homicidal death of deceased bevnath ©b.N. Yadav is not in dispute. Even otherwise, from the evidence of complainant bilip Kumar Verma. who has witnessed the incident and who has alleged that the appellant gave the deceased blows by Rapali over his head and further from the evidence of br. R.C. Mishra, who examined Devnath ©b.N. Yadav and gave his injury report of Ex.-P/17-A <& who found one incised wound of the size of 8x3x 3 cmon the frontal region, 3 cm behind the hair line <Si who also found that his brain tissue was coming out and from the postmortem report (Ex.-P/lO) prepared by br. Jagriti Agrawal wherein she noticed one incised wound of the size of8x3 x 3 cm brain deep, tissues were coming out of the wound, fracture of frontal bone and she ^ v-^ further opined that cause of death was coma due to head injury, homicidal death of the deceased is established. 9. Learned counsel for the appellant vehemently argued that conviction of the appeltant is based on the evidence of Dilip Verma, who claims to be eyewitness to the incident. However, this witness has stated in his deposition that the appellant gave 3 blows by a Rapali over the head of the deceased, however, his version is belied from the evidence of br. R.C. Mishra, who has proved medico legal examination report of bevnath © D.N. Yadav as also as per the evidence of Dr. Jagriti Agrawal, who has conducted postmortem, as in the medico legal examination as well as postmortem report only single injury has been found on the head of the deceased. He further argued that the prosecution has failed to establish motive for the crime. The other witnesses do not support the case of the prosecution. In the FSL report, origin of the blood has not been established. Reliance is placed in the matters of Piara Singh and others V. State of Punjab1, State of U.P. Versus Shiv Kumar and others2. 10. On the other hand, learned counsel for the State has supported the impugned judgment. 11. We have heard learned counsel for the parties. We have perused the record of the trial Court as also impugned judgment. 12. Learned trial Court, on the basis of evidence of Investigating Officer K.S. Nagvanshi, who has proved memorandum (Ex.-P/6) of recovery of Rapali at the instance of the appetlant vide Ex.-P/7 and further considering that witness of memorandum and seizure Ghanshyam Verma has admitted his signatures in the above documents and has also admitted that he signed those documents on^his own free will, has held that weapon of offence i.e. Rapali was seized at the instance of the 1 AIR 1977 SUPREME COURT 2274 2 (2005) 11 Supreme Court Cases 212 ^ appellant and FSL report confirms presence of blood over Rapali and shirt of the accused. Relying upon the evidence of bilip Verma, the complainant, whose version is also corroborated by the evidence of br. Jagriti Agrawal and br. R.C. Mishra and also from the evidence of Somnath and First Information Report of Ex.-P/l, it has been held that the prosecution has proved the case against the appellant beyond reasonable doubt. 13. If we closely scrutinize the evidence of eyewitness Dilip Verma, we find that at the date and time of the incident he was sitting in his shop. The appellant was also sitting there after consuming liquor. He got agitated when the deceased wished him and asked about the crop. There was oral altercation for half an hour. Thereafter the deceased went away under the banyan tree, however, the appellant followed him and oral altercation continued. Thereafter, the appellant pushed the deceased and after he fell on the ground, he assaulted the deceased thrice with Rapali over his head. Blood started oozing and his brain material came out. He informed Bhatapara Police by telephone. After arranging the jeep, he took the deceased to Bhatapara Police Station and from there he was taken to the hospital. He has proved the report of Ex.-P/l. He has also proved inquest of Ex.-P/4 and seizure of clothing of the appellant (Ex.- P/5). In cross-examination, he has admitted that 4 days before the incident somebody had stolen silver bracelet of the appellant. He had advised him to lodge report. The appeltant did not express suspicion on him for theft. In para-14 of his cross-examination, this witness has stated that 3 blows were given from back side of the Rapali. He has denied the suggestion that he had any dispute regarding irrigation with the deceased. He has further denied the suggestion that when the deceased and the appellant were engaged in argument number of persons had gathered and thereafter both of them went towards the tree. He has stated that 10-15 minutes thereafter the appellant returned to his shop. However, on seeing him, he and Sudhir Mishra locked themselves inside the shop and they only opened the door when the appellant left. He has admitted that the appellant's Kardhan was stolen from 8-10 days before the incident. However, he has denied that the deceased was witness of theft of Kardhan and he was demanding money from this witness on the threat that he would implicate him in the theft of Kardhan. He has further denied that because of threat by the deceased, he took him near the pond and murdered him. 14. Learned counsel for the appellant has vehemently stressed upon the discrepancy in the ocular evidence of Dilip Verma and medical evidence. This witness has seen the appellant giving 3 blows from the back side of the axe over the head of the deceased, whereas both the doctors have found onty one incised woundof the size of8x3 x 3 cmon the frontal region of the deceased. therefore, the trial Court was not justified in convicting the appellant by ptacing implicit reliance on the sole eyewitness. 15. It is true that there is discrepancy in the account given by the sole eyewitness and medical evidence. In the matter of Piara Singh (Supra), 4 accused persons entered the house of the deceased and assaulted him with Kirpan, Gandasi, Barchhi and also with a bullet from rifle. The gun shot injury was attributed to Piara Singh. The deceased died on the spot. Learned Sessions Judge disbelieved the prosecution case mainly on the ground that ocular evidence was inconsistent with the medical evidence, as injury alleged to have been caused by firearm was not firearm injury. However, the High Court set aside the order of acquittal and convicted the appellant relying upon the evidence of Dr. Jatinder Singh, who first examined the deceased. bismissing the appeal of the accused, the Hon'ble Supreme Court observed thus:- "It is well settled that the positive evidence in the case is that of the eye-witnesses who had seen and narrated the entire occurrence. The evidence of a medical man or an expert is merely an opinion which lends corroboratiori to the direct evidence in the case. Where there is a glaring inconsistency between direct evidence and the medical evidence in respect of the entire prosecution story, that is undoubtedly a manifest defect in the prosecution case." 16. In the matter of Shiv Kumar (Supra) also, the Hon'ble Supreme Court, noticing inconsistency in the account given by eyewitness and medical evidence and further considering that presence of other alleged eyewitnesses at the scene of occurrence was doubtful and the prosecution failed to examine wife of the deceased, who was with her husband at the time of incident, did not interfere with the order of acquittal passed by the High Court. 17. In the matter of Kailash Versus State of M.P.3, 3 accused persons were prosecuted for committing the murder of the deceased by axe and Musal. Relying upon testimony of injured eyewitness Savitri, wife of the deceased, the Sessions Court as also the High Court convicted the appellant. The main argument advanced on behalf of the appellant before the Hon'ble Supreme Court was that the medical evidence does not tally with the ocular evidence. The doctor categorically stated that under no circumstances the injury could be caused by sharp cutting weapon. He was of the opinion that injury was caused by hard and blunt object whereas, allegation against the appellant was that he assaulted by sharp side of the axe, as stated by eyewitness Savitri. The Hon'ble Supreme Court ignoring the above discrepancy observed that where place of injury was on the parietal region, in certain situations/wound produced by a blunt instrument may simulate appearance of an incised wound. (2006) 11 Supreme Court Cases 420 ^a-"^' ^. 18. In the instant case, in the medico legal injury report as also the postmortem report, the doctors have mentioned one incised wound of size 8x3 x 3 cm over the frontal parietal region of the deceased. They have opined that the above injury was coused by hard and sharp edged object. Dr. Jagriti Agrawal (PW-4) has alsoopinedin para-5 of her cross-examination that the above injury could be caused by blunt weapon also. From perusal of the inquest report, it is also observed that apart from the injury described by the doctors, in the above injury report another injury on the right side of the head of the deceased has also been pointed out. 19. Conviction of the appellant is based on the evidence of PW-1 bilip Verma, who also lodged the First Information Report immediately after 1 hour of the incident in the Police Station situated at about 13 km from the place of incident narrating the circumstances in which the incident occurred and naming the present appellant as perpetrator of offence. He has been cross-examined at length by the defence. However, the defence could not elicit any material omission, contradiction or inconsistency in the evidence of this witness to doubt his credibility. From cross-examination, it is also evident that the appellant was present at the time of incident. He is an independent witness. His presence in his shop, which is situated beside the liquor shop, is very natural. His evidence otherwise inspire confidence of the Court. His evidence is corroborated by the evidence of PW-3 Somnath, as also from promptly lodged First Information Report. The trial Court relying upon the evidence of bilip Verma and further placing reliance on the recovery of weapon of offence and blood stained clothes on memorandum of the present appeltant and that the FSL report confirmed the presence of blood on the above articles has held the charge proved against the appellant. 20.An attempt has been made to develop a defence that this witness himself committed the offence as the deceased tried to extract money by blackmailing him, however, no material, either by way of cross- examination of prosecution witnesses or by adducing evidence in defence, could be brought on record to establish this defence. 21. Now, so far as the next argument of the appellant that the incident occurred without any premeditation, due to sudden quarrel, on the spur of moment, without any motive, and the deceased sustained only one injury, and therefore, either intention or knowledge to cause death of the deceased cannot be attributed to the appellant is concerned, it is settled law that intention of the accused can be inferred on the basis of weapon of offence used, part of the body on which injury was inflicted and the force with which blow was given. 22. From the evidence, it is seen that the appellant picked up quarrel without any provocation frpm the deceased; the deceased went away towards Banyan tree, where the appellant armed with axe followed him. After oral altercation for sometime, he pushed the deceased on the ground and thereafter, assaulted him by axe over his head with such a force that the deceased sustained fracture of parietal bone and brain tissues came out. The deceased was rushed to the hospital, but he could not be saved and he died at 3.00 on the same day. In these circumstances, we are of the opinion that the appellant intentionally assaulted the deceased with an axe over his head resulting in his death. The appellant has been rightly convicted under Section 302 of the IPC and sentenced by the trial Court. 23. In the result, the appeal being without any substance deserves to be dismissed and is accordingly, dismissed. Sd/- Dhirendra Mishra Judge Barve Sd/- Dilip Raosaheb Deshmukh Judge