'•:ti<s^ssy'fSKfsy'"fvK HJGH COURT QF CHHATTIS&fyaL^ILASPUR DIVISION BENCH: HON'BLE^SHRLT.P.SHARMA Ss HON'BLE SHRI RAJESHWAR LAL JHANWAR, JJ. Cnminal AiyieaLNq,^>28^f ^005 APPELLANT Dhanirain RESPONDENT Versus State of Chhattisgarh Judgment for consideration Sd/- R-l--Jhanuvar Judge Hoa'bl^Shri T.P.SHARMA, J. '3 Sd/- T-P. Sharma Judge Post for pronouncement of Judgmei — ^i -on_i i Sd/- JUDGE JjyQi/2011 i~"'VA HIGH COURT OF CHHATTISGARH : BILASPUR DIVISION BENCH: HON'BLE SHRt T.P.SHARWIA AND HON'BLE SHRI R.L.JHANWAR, JJ. CnmLnai Ap^ea) Mp^528of2005 APPELLANT Dhaniram, son of Ganeshram Satnami, aged 45 years, Occupation Agricultural labouring, resident of village Bandhanpur, Police Station Kapu Dist. Raigarh (C.G.) VERSUS RESPONDENT • : State of Chhattisgarh, Through Station Incharge, Police Station'KapU, Dist. Raigarh (C.G.) : CRIIVIINAL APPEAL UNDER SECTION 374 (2)0F THE CRINIINAL PROCEDURE CODE Appearance: ' Mr. Ravish Verma, counsel for the appellant. Smt. Madhu Nisha Singh, P.L. for the State. JUDGMENT , (Passedon n.01.2011) Per R.L.Jhanwar, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 08.04.2005 passed by the 2 Additional Sessions Judge, Raigarh in S.T.No.99/2004 whereby and whereunder the learned Additional Sessions Judge held the appellant guilty for commission of culpable homicide amounting to murder of Jainandan and convicted the appellant under Sectiori 302 of the I.P.C. and sentenced" him to life imprisonment with fine of Rs.500/- and in default to undergo R.l. for two months each. 2. Brief facts of the prosecution, in a nutshell, are that on fateful day of 08.05.2004 at 4.00 when the deceased Jainandan, an old man of 70 z- years, was on his way at Banjarpur, the appellant stopped him and assaulted him with stick and shoe and caused injuries to him. It was alleged that the appellant also beat him by pelting stone over him. As a result of injuries caused by the appellant, Jainandan was admitted in Hospital and on 9.5.2004 he succumbed due to injuries caused by the appellant. F.1.R. was lodged vide Ex.P.16. Merg intimation was also recorded vide Ex.P.20. Spot map was prepared vide Ex.P.10. Investigating Officer left the scene of occurrence and after summoning the witnesses vide Ex.P.22, inquest over the dead body was prepared vide Ex.P.23. Again one spot map was also prepared vide Ex.P.21. Dead body of Jainandan was sent to Community Health Center, Dharamjaigarh where Dr. Balram Savaria P.W. 14 conducted the autopsy on the dead body of Jainandan and found the following injuries: 1. Lacerated wound on the back at medial side of right scapular region, size 3 cm. long x 2 cm. wide x 1 cm. deep. 2. Contusions on whole of the back extending from neck to lower waist region. These are forty in number overlapping to another at varying sizes. 3. Lacerated wound on scalp near vertex region anterior posterior, size is 3 cm. long x 1 cm. wide x % cm. deep. 4. Two contusions on outer aspect of each thigh horizontally situated each 6 % cm. long x 2 cm. wide. 5. Contusion over entire left ear. 6. Contusion of medial portion of clavicular region. All injuries were ante-mortem in nature and could be caused by hard, blunt and object. Mode of death was opined to be syncope as a result multiple wound on the body which caused severe pain and shock and death ofwas homicidal. During the investigation, the accused was taken into custody and made disclosure statement vide Ex.P.6, on the basis of which and at the instance of the appellant, weapon of offence i.e. Besharam stick and stone of 100 Kg. weight, stained with soil contents was recovered vide Ex.7 shoe of the appellant, which is in black colour, was seized vide Ex. P.8. (S) 3 ,(*l -^ Vide Ex.P.17 one sealed packet containing cloths of the deceased was seized. On 20.07.2004, the seized and sealed items were sent to F.S.L. 4. Statements of witnesses under Section 161 of the Code of Criminal Procedure, 1973 were recorded. After completion of investigation, charge sheetwas filed before the J.M.F.C. Dharamjaigarh, who in turn committed the case to the Court of Sessions, Raigarh. The learned Additional Sessions Judge, received the case on transferfor-its trial. 5. ln order to prove the guilt of the appellant£, the prosecution examined as many as 22 witnesses. The accused/appellant was examined under Section 313 of the Cr.P.C. in which he deqied the circumstanees gppea.ring.aggiR^.t.hijm; and..pleacjed thejr innocence and false implication in crime in question. 6. After affording opportunity and hearing the parties, the learned Additional Sessions Judge convicted and sentenced the appejlant as aforesaid mentioned in para 1 (supra). 7. Shri Ravish Verma, learned counsel for the appellant and Smt. Madhu Nisha Singh, P.L. forthe State are heard and judgment impugned and record below perused. , i . r: 8. Shri Ravish Verma, learned counsel for the appellants vehemently argued that although conviction js based on the evidence of P.W.1 Smt. Demati, P.W.2 Smt. Kalabai, P.W.3 Smt. Sanmati Bai, P.W.4 Smt. Shanti Bai, P.W.5 Smt. Bhagwati Bai, P.W.6 and Roku Ram and since they are the interested witnesses, therefore, their evidence does not inspire confidence, trustworthy and is not safe to rely on in the absence offurther corroboration from independent witnesses since there are material omissions. It was further argued that the evidence of the above witnesses is contradictory to each other and is not corroborated tb each other regarding what weapon was used. The prosecution has failed to prove its case beyond reasonable doubt. The prosecution has also utterly failed to prove motive and intention of the appellant to cause death of Jainandan. Learned counsel laid much stress on the evidence of the above witnesses since some of the witnesses were afraid pf the incident and due to fear ^ some of the above witnesses came out from the house and in such a condition, there was no occasion for them to see the incident in which who assaulted Jainandan. Lastly, it was urged that if the evidence adduced by the prosecution is taken at its face value, then at the most, the act committed by the appellant would not travel beyond the scope of section 304 Part 1 ofthe I.P.C. On these premises, learned counsel urged thatthe appellant be released from jail. ^ 9. On the other hand, Shri Sandeep Yadav, learned counsel for the State opposed the appeal and submitted that the evidence of P.W.1 Smt. Demati, P.W.2 Smt. Kalabai, P.W.3 Smt. Sanmati Bai, P.W.4 Smt. Shanti I Bai, P.W.5 Smt. Bhagwati • Bai, P.W.6 and Roku Ram is sufficient for drawing an inference that the appellants has caused culpable homicide amounting to murder of Jainandan. Although there was material omission and contradictions in their evidence, but on this ground alone their evidencecannot be discarded. It was further argued that for the present if the evidence of the above witnesses is discarded, then the evidence of Dr.Balram Savaria, who has conducted the autopsy on the dead body of Jainandan, is sufficient to convict the appellant. After appreciating the evidence available on record, the learned Court below has rightly convicted and thus sentenced the appellant. 10. In order to appreciate the arguments advanced on behalf of the parties', we'have:'examined"'th'e'eviaehceadduced on b'ehalf 'bf the prosecution. In the present case, homicidal death as a result'offatal injuries found over the vital parts of the body of deceased Jainandan has not been substantially disputed on behalf ofthe appellant, but on the other hand also established by Dr. Balram Savaria P.W.14 and autopsy report Ex.P.13 and injury report Ex.P.14 and death was homicidal in nature. 11. As regards involvement of the appellant in crime, in question, conviction of the appellant is substantially based on the evidence of P.W.1 Smt. Demati, P.W.2 Smt. Kalabai, P.W.3 Smt. Sanmati Bai, P.W.4 Smt. Shanti Bai, P.W.5 Smt. Bhagwati Bai, P.W.6 and Roku Ram, who have specifically' deposea' 1h" tti'eir"'evi9ehce that the-'appellaht as^siulted Jainandan by stick and stone and caused injuries.It has come in their r~——--.—.- 1'.>:..J/.^1 ^sssy r evidence that they were afraid of the incident and therefore, they kept -mum at the time of incident. It has also come in their evidence that the appellant relentlessly and continuously beat the deceased and caused fatal injuries. It has further come in their evidence that although they witnessed the incident from their house or from close quarters, but the above witnesses have specifically denied that they did not witness the incident which shows that all the above witnesses have witnessed the incident from their house or from close quartgrs. The evidence of above witnesses also shows that the manner in which the appellant assaulted and caused fatal injuries and thereby committed hromicidal death by using criminal force. Although there may be material contradictions and omissions in their evidence regarding weapon of offence used by the appellant, but on this count, their evidence cannot be discarded. The evidence of the above witnesses inspires confidence, trustworthy and is safe to rely and is also sufficient for conviction of the appellant. Moreover, at the instance of the appellant the weapon of offence i.e. Stick and Stone used by him were seized and the same were proved by Rameshwar Ram P.W.9 and Kunwar Ram P.W.10 are the witnesses ofseizure ofweapon of offence i.e. Stick and Stone used by the appellant. In addition to these witnesses, P.W.20 and F.J. Tigga P.W.21, Assistant Sub-lnspector also proved the seizure pfweapon of offence. 12. So far as the evidence of P.W.14 Dr. Balram Savaria is concerned, a perusal of autopsy report Ex.P.14 and injury report Ex.P.14 would clearly reveal that there are total 6 injuries which were found over the body of the deceased as ante-mortem in nature. More so, those^ injuries were serious in nature and caused- the death of Jainandan. It Would further cleariy reveal that the appellant relentlessly and continuously beat the appellant and caused homicidal death of Jainandan. It shows that the appellant used criminal force uponan old man, who was'helpless and armless. 13. As regards the contention that the above witnesses are interested witnesses, interested witnesses are the witnesses and their evidence cannot be discarded only on the ground of relationship. The Courts are required to scrutinize their evidence with great care and cautionj Close relatives or interested witnesses of the deceased will be reluctant to spare the real culprit and implicate the innocent person falsely. More so, the appellant has also not been able to prove any animosity with them. In the absence of any animosity, the contention of the appellant that the above witnesses are interested witnesses has no force. 14. As regards of question of motive is concerned, As regards the question of motive, in case of direct evidence, motive loses its importance, even otherwise, motive only aids in criminality and it can be inferred from the use of weapon, part on the body affected and other similar circumstances. In the present case, as per the case of the prosecution, while the deceased Jainandan was goingon road, the appellant dragged him and assaulted by she and a thin stick and also by stone and has caused huge numberofinjuries; The age ofthe deceased\was 70 years and the appellant has mercilessly assaulted the deceased and caused 40 contusions by stick over his back along with other injuries, which shows the merciless actand grave intention ofthe appellant in causing homicidal death amounting to murder of a 70 years old aged person. 15. After appreciating the evidence available on record, the" Court below has rightly convicted and sentenced the appellant. The conviction of the appellant is fully based on clinching, cogent and reliable evidence on record. : 1 :! 16. -Qn close scrutiny ofithfeevidence.-w&do not find any illegality in the conviction andsentence of the appellant requiring interference by exercising appellate jurisdiction. 17. Consequently, the appeal is without merit and is liable to be and is accordingly dismissed. ——~-- Sd/-' R.L. Jhanwar Judge Sd/- T.P. Sharma Judge