^iTTpTT^ -,—..^,,i •'^ ^;r%!. E HIGH COURT OF CHHATTISGARH AT BILASPUR DB: Hon'ble Shri T.P, Sharma & Hon'ble ShriR.N. Chandrakar, JJ, Criminal Appeal No. 652 of 2005 Appellant (in jail) Vs. Respondent Budhram Kamar s/o. Dayaram, aged about 30 years r/o. village Khatti P.S. Mahasamund, Distt. Mahasamund Chhattisgarh. •State of Chhattisgarh through -Police Station Mahasamund, District Mahsamund (CG). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. Prakash Tiwari, counsel forthe appellant. Mr. D.K. Gwalre, Deputy Govt. Advocate for the State. ORAL JUDGMENT (Deliveredon 7-7-2011) PerT.P. Sharma.J. {^yn/ 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 23-6-2005 passed by Second Additional Sessions Judge, District Mahasamund in Sessions Trial No. 94 of 2005, whereby and whereunder learned Sessions Judge after ^'; holding the appellant guilty for the commission of culpable homicidal death of Sukhin Bai, sister-in-law of the accused/appellant amounting to murder convicted the appellant ynder Section 302 IPC and sentenced him to undergo life imprisonment and to pay fine of Rs.1000/-, in default of payment of fine to undergo additional Rl forfour months. \ Conviction of the appellant is impugned on the ground that without there being any iota of evidence the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. The case of the prosecution, in brief, is that the appellant was residing in the house of Phool Bai (PW/1)- mother of the deceased and mother-in-law pf the appellant wherein her second daughter Sukhin Bai, who left her husband, was also residing with them. The appellant was married to Dukhin Bai who died two years ago due to illness. The appellant intended to marry his sister-in-law Sukhin Bai (since deceased) who was not interested to marry the appellant. On 28-1-2005 when Sukhin Bai refused to marry the present appellant, the appellant assaulted Sukhin Bai by knife on abdomen and other vital parts of her body and thereafter he assaulted himself by knife on his abdomen. The appellant and Sukhin Bai were taken to Government Hospital, Mahasamund where Dr. Girdharilal Chandrakar (PW/5) examined them and during treatment Sukhin Bai died. ^;: '^H 5. Phool Bai (PW/1) went to Police Station Mahasamund and lodged FIR vide Ex.P/1. Merg intimation was recorded vide Ex.P/10. Spot map was prepared vide tex.P/11 , clothes removed from the body of deceased were seized vide Ex,P/12, clothes of the appellant were seized vide Ex.P/13. Investigating Officer left for scene of occurrence and after summoning the witnesses vide Ex. P/2 prepared inquest overthe body ofthe deceased vide Ex.P/3. Blood stained clothes, greencoloured broken bangles, one cap, blood stained knife, blood stained soil and plain soil were seized from the spot vide Ex.P/4. Seized articles were sent for chemical examination to FSL, Raipur vide Ex.P/15. Dead body of the deceased was sent for autopsy to Government Hospital, Mahasamund vide Ex.P/7 where Dr. Ghanshyam Chandrakar (PW/4) conducted postmortem vide Ex.P/7 and found the following injuries; i) one stab wound over left side of frontal region in the size of 2x.0.5 x 15 cm; 2) stab wound over left xiphisternum in the size of 2 x 1x8 cm; 3) stab wound over right lumber region in the size of 3.5 x 1x 4.5 cm; 4) stab wound over the right thigh in the size of1 x % x3 cm; 5) stab wound on umbilical region in the size 1 x 1Ax 3 cm; 6) stab wound over right glutel in the size of4x2x 6 cm and 7) stab wound over upper part of right thigh in the size of 3.5 x 1x 6 cm. Cause of deatti was coma due to head injury and homicidal in nature. After completing the investigation, charge sheet was filed against the appellant in the Court of Chief Judicial Magistrate, Mahasamund, who in turn committed the case to the Court of 4 4 Sessions Judge. Learned 2 Additional Sessions Judge, received the case on transfer, who framed charge under Section \ 302 of the Indian Penal Code against the appellant who abjured the guilt. 6. Prosecution in order to establish the charge against the appellant examined seven witnesses in all. Thereafter, the statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the circumstances appearing against him in the prosecution case and pleaded innocence and false implication. 7. The trial Court after hearing counsel for the respective parties, convicted and sentenced the appellant as mentioned in paragraph one ofthejudgment. 8. Mr. Prakash Tiwari learned counsel appearing for the appellant vehemently arguedthat on a sudden provocation and in the right of private defence, the appellant picked up knife and assaulted the deceased, but he had no pre-plan or intention to kill the deceased, therefore, the act of the appellant does not travel beyond the scope of Section 304 part II of thelPC. In support of his arguments, learned counsel has placed his reliance in the matter of Laxmichand @ Balbutya vs. State of Maharashtra reported in 2011 Lawsuit (SC) 13 whefein it was heldthat injury caused without pre-plan or intention to kill the deceased under intoxication, the offence would fall under Section 304 Part II of the IPC and sentence of five years would be sufficient. 9. Per contra, Mr. D.K. Gwalre, learned Govt. Advocate appearing on behalf of the State supported the impugned judgment and submits \ that the appellant caused as many as seven stab wounds on the vital parts of the body of deceased and he himself has caused injury on his body which shows that after causing such injuries to the deceased, on account of repent, he himself tried to damage his body which is subsequent conduct relevant under Section 8 of the Evidence Act. Thus, thelower Court considering all the facts of the case, has rightly convicted and sentenced the accused/appellant. 10. We have heard learned counsel for the parties and perused the record ofthe trial court as also the impugned judgment 11. In order toappreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf ofthe prosecution. 12. In the present case, homicidal death of the deceased asaresultof fatal injuries all over the body of Sukhin Bai is not substantially disputed by the appellant. On the other hand, it is established from the injuries report (Ex.P/8) of Dr. Giridharilal Chandrakar (PW/5) and postmortem report (Ex.P/7) of Dr. Ghanshyam Chandrakar (PW/4), death of Sukhin Bai was homicidal in nature. 13. As regards complicity of the ^appellant in the crime in question is concerned, conviction is based on the evidence of Phool Bai (PW/1), mother of the deceased and motber-in-law of the appellant. As per her evidenee, her elder daughter Dukhin Bai was married to appellant and she died due to illness. Deceased Sukhin Bai was 14. married toone Sonu Yadav and resided with him for 2 - 3 years and thereafter deserting her husband she came to her house \ where she was residing with her mother. After death of her first daughter Dukhin Bai , her son-in-law (appellant) was residing with her. The appellant intended to marry her daughter Sukhin Bai but she was not ready to marry him and on such refusal and unwillingness of Sukhin Bai, the appellant picked up a knife used for grazing bamboo and fcaused injuries over the head and abdomen of Sukhin Bai. After causing repeated injuries, the appellant himself caused injury on his abdomen by knife. She called Kotwar and thereafter they took Sukhin Bai and injured appellant to Hospital where she died, therefore, she lodged first information report (Ex.P/1)in police station. Defence has cross examined this witness at length, but has not been able to elicit anything in her cross-examination to discredit her testimony relating to injuries caused by appellant to Sukhin Bai and himself. The evidence of this witness is corroborated by the evidence of other witnesses i.e., PW/2 - Rooplal Dhruw, PW/3 - Sohan, village Kotwar and medical evidence which is sufficient for drawing inference that the appellant has caused homicidal death of deceased Sukhin Bai and on account of repent, he himself has caused injury on his abdome whichis relevant under Section 8 of the Evidence Act in proving the aforesaid fact. As regards intention for causing death gf deceased is concerned, as per evidence of PW/1 -Phool Bai, intention can be inferred on the basis of weapon used on the vital pari:s of the body of the y^: ::^ SsSBBs,. i^ .'^1^^^ ?; ^~^a^^y:^g ^ ^J^/ 15. 16. Raju deceased and other circumstances, In the present case, on refusal of marriage by Sukhin Bai who was already married to another \ person, appellant caused repeated assaults by dangerous weapon like knife used for grazing bamboo and caused as many as seven stab wounds on the vital parts of body, the act of the appellant shows that he has caused injuries to the deceased with intention to cause her death. This is not a case of causing injury on account of some disputeor single injury or injury caused under intoxication. Thus, the case law cited by learned counsel for the appellant is distinguishable to the facts of the present case. After appreciating the evidence available on record, learned Additional Sessions Judge, has convicted and sentenced the appellant as aforementioned. On a close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned warranting any interference. The appeal being devoid of merit is liable to be dismissed and is hereby dismissed. SdA T.P. Shai-ma Judge Sd/- . R.N. Chandrakar Judge m