'7 HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: APPBLLANT IN JAIL RESPONDENT HON'BLBMR. T.P.SHARMA& HON'BLE MR. R.L. JHANWAR. JJ. CR. A. N0. 06/2004 1. VERSUS AsaruRam S/o Mangal Gond, age 50 years, Occupation Cultivatore, R/o Village Dhengurjor P.S. Kansabel District Jashpur (C.G.). State of Chhatdsgarh, Through P.S. Kansabel Distt. Jaspur (C.G.). CRIMINAL APPEAL U/S 374 (21 OF THE CODB OF CRIMINAL PROCEDURE 1973:-. Present- Ms, Nirupama Bajpai, Advocate for the appeUant, Mr. Ashish Shukla, G.A. for fhe State/respondent. ^^^^^ \ ORAL-JUDGBMBNT (Passedon 17/09/2010) The foUowtne iudsment of fhe Court was nassed bv T.P. Sha.rma, J:- 1. ChaUenge in ftiis appeal is to fhe judgment of conviction and order of sentence dated 24/11/2003 passed by Second Additional Sessions Judge (F.T.C.) Jashpiir in Sessions Trial No. 42/2003 whereby and where under after holding the appellant guilty for fhe offence of cominission of culpable homicide amountmg to murder of Sarihan Ram convicted fhe appellant under Section 302 of the Indian Penal Code and '^ .^-~- ^ sentenced imprisonment for life and fme of Rs. 1000/- in default of payment of fine amount additional simple imprisonment for 1 month. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of fhe appellant, Court below has convicted and sentenced fhe appellant as aforementioned and thereby committed an Ulegality. As per case of the prosecution on fateful day of 8/5/2003 at about 7 P..M. Sarihan Ram was sitting with other person and was talkmg with them at that time appellant was came, he was holding axe. Sarihan Ram told him that sister-in-law of the appeUant is alone why he did not help m preparation of tiles. Then appellant annoyed and assaulted Sarihan Ram twicely by axe over his head after throwing axe appellant told that he is gotng to fhe police station and fled away from fhe spot. PW8 Huleshwar Ram was present on fhe spot, he went to the police station and lodged fhe First Information Report vide Ex. P-6. Marg was recorded vide Ex. P-7. Investigattng Ofiicer left for scene of occurrence after summomr^ ttie witaaesses vide Ex. P- 8, inquest over fhe dead body of Sarihan Ram was prepared vide Ex. P-10. Dead body was sent for autopsy to Community Health Center, Kasabel. PW1 "^ "^^ ~i'^^^^~"' Dr. B.K. Maheshwari conducted autopsy vide Ex. P-1 and found following injuries:- (l)-Incised wound of 3" x 2" x bone deep over right parietal region. (2)-Abrasion of 1 x 0.5 c.m. over Uiac bone. On intemal examination:- (l)-Multiple fracture was found over right parietal and temporal bone wifh hemotoma was found. Death was homicidal in nature. 4. Spot map was prepared vide Ex. P-9. Blood stained and plain soU and blood stained axe was seized from fhe spot vide Ex. P-11. Sealed clottis of tlie deceased were seized vide Ex. P-12. Patwari also prepared spot map vide Ex. P-16. Sealed articles were sent for chemical exaDimation vide Ex. P-4. 5. Statements of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (m short <the Code'). After completion of the investigation charge sheet was filed before fhe Chief Judicial Magistrate, Jashpur who in tum committed the case to the Court of Sessions Judge Raigarh from where leamed Second Additional Sessions Judge, (F.T.C.) Jashpur received the case on transfer for trial. 6. In order to prove the guilt of fhe appellant/accused prosecution examined as many as 10 witnesses. -^' Accused was examined under Section 313 of the Code where he denied fhe circumstances appearing against him, innocency and false implication is claimed. 7. After aflfording an opportunity of hearmg to fhe parties leamed Second Additional Sessions Judge, (F.T.C.) Jashpur convicted and sentenced fhe appellant as aforementioned. 8. Leamed counsel for the appellant Ms. Nirupama Bajpai and leamed G.A. for fhe State/respondent Mr. Ashish Shukla are heard. Judgment impugned and record of Court below perused. 9. Leamed counsel for the appellant vehementty argued that although conviction is based on evidence of eye witnesses but fheir evidence does not inspire confidence, trustnrorthy and is not safe to rely even otherwise thetr evidence reveal tbat appellant was provoked by Sarihan Ram i.e. deceased fhen he has caused injury without any premeditation and intention therefore if the case of the prosecution is admitted in its face value then even fhe act of fhe appellant does not travel beyond the scope of under Section 304 Part-I of the Indian Penal Code. 10. On the other hand, learned Govt. Advocate for fhe State/respondent opposed the appeal and submits that present appellant has caused repeated injury to the ^^ Sarihan Ram which shows the grave intention of causing murder of Sarihan Ram and after appreciating the evidence available on record leamed Second Additional Sessions Judge (F.T.C.) Jashpur has rightiy convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injuries found over the head of Sarihan Ram has not been substantially disputed on behalf of the appellant on the other hand, ofherwise also established by fhe evidence of PW1 Dr. B.K. Maheshwari and autopsy report Ex. P-1 which reveal that fetal injury was found over fhe head and multiple fracture over parietal and temporal region and bone was found cut which shows gravity of offence and death was homicidal in nature. 13. As regard fhe complicity of appellaiit in crime in question, conviction is substantially based on fhe evidence of eye witnesses PW5 Gigala Ram, PW6 Kameliyus, PW9 Semarhin who deposed in their evidence ttiat Sarihan Ram and Kameliyus were going together and after completion of their work at fhat time appellant suddenly came who was holding axe and 'iJSSIIIBiiSISSIIBSSB^WKS^S^^^^S ,^- caused twice tnjuries upon body of Sahiran Ram. Sarihan Ram fell down and died. Defence has cross- exammed these witnesses at length but has not been able to illicit anyfhing in their cross exarmnation to discarded fheir testimony. Evidence of aforesaid witnesses are siifficient for drawing an inference that while Sarihan Ram was present with PW6 Kameliyus appellant who was holding axe came and caused repeated injuri.es to Sarihan Ram and caused his instantaneous death. 14. This is not a case in which on account of some dispute appellant has caused injmy or on fhe ground of sudden quarrel appellant has caused mjury but as per evidence of prosecution appeUant came to spot he was holding axe and caused repeated injmy. Casing the deafh of Sarihan Ram which shows his grave intention of causing death of Sahiran Ram. 15. After appredating the evidence available on record leamed Second Additional Sessions Judge (F.T.C.) Jashpur has rightly convicted and sentenced the appellant as aforementioned. 16. On close scrutmy of the evidence, we do not find any illegality of infirmity in the conviction and sentence of the appellant. Criminal appeal is devoid of merits. ^^w~-^, /\..^: ^ [i^^K% f ^ • ,'s. .?; "..•^^' ^ .- ^^' Consequently, crimmal appeal is Uable to be dismissed and is hereby dismissed. Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge r