/,''%:" /'£^~^ '^ i ^&i^'^ .^- V^-4^. '^^tSeS.s!^- ..B-.'&S HIGH COURT OF CHHATTISGARH. BILASPUR APPELLANT: (InJail) RESPONDENT: Criminal Appeai No.^232 of 2006 Kaleshwar Singh aged about 23 years, Son of Likha Ram Gond, resident of Village Luthara, P.S. Seepat, Tah. Seepat, Distt. Bilaspur (C.G.) Versus State of Chhattisgarh, Through P.S. Seepat, Distt. Bilaspur (C.G.) {Criminal appeal under Section 374 (2) of the Code of Criminal Procedure} Present: Mr. R.K. Jain, counsel forthe appellant. Mr. D.K. Gwalre, Govt. Advocate forthe State/respondent. Division Bench: - Hon'ble Mr. T.P. SJiamicLand HonlbLe Mr.^JM^Chandrakar, JJ ORAL JUDGMENT (23-8-2011) T.P. Sharma, J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 24-3-2006 passed by the 1 Additional Sessions Judge, Bilaspur, in Sessions Trial No.387/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Smt. Chandan Kunwar, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.200/-, in default of payment of fine to further undergo Rl for one month. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on the fateful day of 21-9-2005 between 8.45 a.m. and 9 a.m. on the ground of suspicion that Smt. Chandan Kunwar (since deceased) was practicing witehcraft, the appellant assaulted her by axe over her back and caused her instantaneous death. Shashi Kumari (PW-1) - daughter of the deceased, came to her house where she saw the dead body of her mother. The appellant made extra / (^ judicial confession before Shashi Kumari (PW-1) and also threatened her to kill her. The appellant was caught hold by other witnesses. Shashi Kumari (PW-1) went to the police station and lodged FIR vide Ex.P-1. Merg was recorded vide Ex.P-19. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-3, prepared inquest over the dead body of the deceased vide Ex. P-4. Blood stained and plain soil were recovered from the spot vide Ex.P-5. Dead body was sent for autopsy to Government Hospital, Seepat. Dr. Rajesh Kumar (PW-8) conducted autopsy vide Ex.P-13 and found following injuries: - (1) Incised wound of 5 c.m. x 1 % c.m. x 4.8 c.m. over back. (2) Spinal cord, internal arterial vessels, vertebral column were found cut. Mode of death was shock. During the course of investigation, the accused was taken into custody, he made discloser statement of axe vide Ex.P-6 and same was recovered at his instance vide Ex.P-7. Blood stained shirt of the appellant was seized vide Ex.P-8. Spot map was prepared vide Ex.P-20. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Bilaspur who committed the case to the Court of Sessions, Bilaspur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused, the prosecution has examined as many as thirteen witnesses. The accused was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant vehemently argued that conviction of the appellant is based on solitary evidence of Shashi Kumari (PW-1) - daughter of the deceased who initially deposed that she has seen the incident and she has shown herself as eyewitness. However, as per FIR Ex.P-1 and her cross-examination, she is not eyewitness to the incident. Her evidence does not inspire confidence, it is not trustworthy and is not safe for conviction of the appellant that too under Section 302 of the IPC. Learned counsel further argued that even as per case of the prosecution, on account of quarrel and suspicion of practicing witchcraft by the deceased, the appellant has caused single blow of axe on the person of the deceased that too over back, not upon head or neck, by axe. The appellant was having sufficient opportunity to cause fatal injury over neck & head of the deceased, but he has not caused such injury. On account of alleged witchcraft, the appellant was perturbed that his children were ill because of the witchcraft being practiced by the deceased. Aforesaid circumstances reveal that the appellant has not caused homicidal death of the deceased with intent to cause her death. Therefore, the act of the appellant does not travel beyond the scope of Section 304 Part-11 of the IPC. 9. On the other hand, learned State counsel opposes the appeal and submits that evidence of Shashi Kumari (PW-1), before whom the appellant has made extra judicial confession, is sufficient for drawing definite condusion that the appellant has caused homicidal death of the deceased. Nature of injury, depth of injury and weapon used are sufficient for drawing inference that the appellant has caused homicidal death of the deceased with intent to cause death. 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 11.1n the present case, homicidal death of the deceased as a result of fatal injury found over her body has not been substantially disputed on behalf of the appellant. Even otherwise, it is established by evidence of Dr. Rajesh Kumar (PW-8) and autopsy report Ex. P-13 that death of the deceased was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction of the appellant is substantially based on evidence of Shashi Kumari (PW-1) who has also lodged FIR vide Ex.P-1. As per evidence of Shashi Kumari (PW-1) - daughter of the deceased, initially she has shown / herself as eyewitness to the incident and has deposed that she has seen the incident, before her the appellant has caused injury upon the deceased by axe, but in her cross-examination, especially in paras 8, 9 & 10, she has specifically admitted that the appellant was standing near the place of incident, he was holding blood stained axe and body of her mother was lying with injury, the appellant also chased her for causing injury to her. In para 10 of her evidence, she has deposed that at the time of chasing her, the appellant made extra judicial confession that he has killed her mother and he will kill her also. 13.The doctor has noticed single injury on the person of the deceased. As per Ex.P-1, the promptly lodged FIR, Shashi Kumari (PW-1) has not seen the incident, but when she came to her house, she saw injured dead body of her mother Chandan Kunwar, the appellant was standing near the body of her mother, he made extra judicial confession before her and also threatened her that he will kill her. Shashi Kumari (PW-1) has exaggerated in her evidence that she has seen the incident. Virtually, she has not seen the incident, but she has seen the injured body of her mother and that the appellant was standing in the same courtyard, he made extra judicial confession before her that he has killed her mother and he will kill her also. This part of evidence is well corroborated bythe promptly lodged FIR Ex.P-1. 14.As held by the Supreme Court in the matter of Sucha Singh and another v. State of Punjab reported in (2003) 7 SCC 643, the Court is required to separate grain of truth from chaff of falsehood, if same is separable, and rely upon the same. In the present case, exaggerated part of the evidence relating to the fact that Shashi Kumari (PW-1) was eyewitness to the incident is separable from the evidence of extra judicial confession made before her by the appellant. This part of evidence is sufficient to prove the fact that the appellant has caused homicidal death ofthedeceased. 15.As regards intention of the accused behind the commission of offence, intention can be gathered on the basis of nature of injuries, weapon used, part of the body effected, number of injuries and other circumstances. In the present case, as per the FIR and statements of other witnesses, the appellant was having suspicion that the deceased was practicing witohcraft and as a result of such act of the deceased, children of the appellant were ill. On the aforesaid ground, the appellant 5-- has caused homicidal death of the deceased. The appellant has caused single blow that too upon back although by causing such injury he has caused grievous hurt to the deceased including cut injury of spinal cord, but absence of repeated assault having sufficient time to cause such assault and injury caused by the appellant over back of the deceased reveal that due to annoyance and frustration the appellant has caused such injury to the deceased and has not caused homicidal death with intent to cause her death, however, at the time of causing such injury the appellant was having knowledge that by his act, the appellant may die. This shows that the appellant has caused hbmicidal death of the deceased with intent to cause death. Therefore, the act of the appellant squarely falls within the ambit of Section 304 Part-1 of the IPC. 16.While convicting the appellant under Section 302 of the IPC, the trial Court has not considered the aforesaid circumstances and thereby committed illegality. 17. For the foregoing reasons, the appeal is partly allowed. Conviction of the appellant under Section 302 of the IPC is altered to Section 304 Part-1 of the IPC and he is hereby sentenced to undergo Rl for eight years & pay fine of Rs.2,000/-, in default of payment of fine to further undergo Rl for three years. The appellant isin custody since 21-9-2005. He is entitled for set off for the aforesaid period of detention already undergone by him. Scma Sd/- '•P. Sharma Judge Sd/- Rangnath Chandrakar Judge