'^ ;";SSL^& ^^ HIGH COURTOF CHHATTISGARH AT BILASPUR Division Bench Coram: Hpn''bte^iri TJP. Sharma & Hon'ble Shri R.N. Chandrakar. JJ. Cnminal Appeal No. 1099 of 2004 Appellant Vs. Respondent. Palesh Kumar, son of Maniram Nagesia, aged about 30 years, agricuslturist, resident of village Jhargaon, P.S. Tamnar, present '^address - village Bichhinara, P.S. ' Gharghoda, Distt. Raigarh - (Chhattisgarh). State of Chhattisgarh through the Police Station Gharghora, Distt. Raigarh (Chhattisgarh). (Criminal Appeal under Section 374 (2) ofthe Cr.P.C.) Present: Mr. A.N. Bhakta, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyer forthe State. ORAL JUDGMENT (Deliveredon 1-8-2011) Per T.P. Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 27-11-2004 passed by 3rd Additional Sessions Judge (FTC) Raigarh, in Sessions Trial No.101 of 2004, whereby and whereunder learned Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide death amounting to murder of his father-in-law - Seetaram Nagesia, 4. convicted the appellant under Section 302 of the IPC and sentenced him to undergo life imprisonment. Conviction of the appellant is impugned on the ground that without there being any iota of e.vidence, the court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, qn fateful night of 5-6-2004 at about •i-i. ,,( 9.00 p.m., appellant, son-in-law.of deceased Seetaram Nagesia and husband of Shailendri Bai (PW/10) was residing in the house of deceased. He was in habit of drinking liquor and was not doing any work. At the time of incident, when the deceased and appellant were taking night meal, deceased advised him not to drink liquor and do the work for livelihood. On this, the appellant annoyed, after taking meals when deceased went towards bathroom for answering the call of nature, appellant picked up an axe lying in the verandah and caused fatal injuries over neck and chest of the deceased as a result of which he fell down and was badly injured. Shailendri Bai (PW/10) who was following her husband, appellant and father, deceased had seen the incident. When she made an alarm, several persons of the vicinity reached there and the accused fled away from the spot. Chatur Singh (PW/7), son of deceased took injured father to Community Health Centre, Gharghoda, thereafter lodged first information report at Police Station Gharghora vide Ex.R/8. Injured Sitaram was examined by Doctor D.S. Patel (PW/5) who found the injuries; i) incised wound just below right clavicle bone \- IfESB! of 13 x 2x1 cm; ii) incised wound just below parietal nipple of 12x2 % cm & whip was found and air came out on account of injury upon nipple; iv) incised wound over back of the neck of 4x1x3 cm; v) incised wound over just below the left nipple of 3x % x1/2 cm; vi) incised wouqd near left nipple of 2x % x1A cm & vii) lacerated wound over left knee 1x % x% cm. He was referred to District Hospital,Raigarh fpr further treatment and during the course of treatment he died. Merg was recorded vide Ex.P/14 on the basis of written intimationvide Ex.P/2 given by Doctor B.R. Patel (PW/2), spot map was prepared by Investigating Officer vide Ex.P/3, after summoning the witnesses inquest over the dead body of deceased was prepared, dead body of deceased was sent for autopsy to K.G. Hospital, Raigarh where Doctor S. Awasthy (PW/8) conducted postmortem vide Ex.P/12 and found the injuries i) incised wound of 2 V-i x1 1/2 " bone deep over right side of neck; ii) incised wound of 6"x1 1/2 " muscle deep over right side of chest; iii) incised wound of 7"x2" bone deep over right side of chest; iv) incised wound of 4" x 1 Yz" muscle deep and 3/9" below the right nipple; v) incised wound of 1 1/2"x% " over left costal margin subcutaneous and opined that mode of death was coma due to hemorrhage and shock and death was homicidal in nature. Spot map Was prepared by Patwari vide Ex.P/4, dying declaration of deceased was recorded vide Ex.P/7 by Sukhnand Prasad Banjare (PW/6), Naib Tahsildar, blood stained clothes were seized vide Ex.P/9, accused was taken into custody and he made a disclosure statement of axe (Ex.P/10) and the same was ^: I'Sil 81«tE«fl| recovered at his instance vide Ex.P/11 and blood stained soil and plain soil were seized vide Ex.P/18, 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellant ir the Court of Judicial Magistrate First Class, Gharghoda, who in turn committed the case to the Court of Sessions Judge, Raigarh. Learned Additional Sessions Judge, ,..< received the case on transfer for trial, who framed charge under Section 302 of the Indian Penal Code against the appellant who abjured the guilt. 6. In order to prove the guilt of the appellant, prosecution examined as many as thirteen witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and pleaded innocence and false implication. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment ircpugned and record of the trialcourt. 9. Mr.A.N. Bhakta, learned counsel appearing for the appellant vehemently argued that the evidence of Shailendri Bai (PW/10), wife of the appellant and daughter of deceased does not inspire confidence and even otherwise as per case of prosecution, on a sudden provocation and without pre-meditation present appellant caused aforesaid homicidal death. Therefore, if the evidence of all the prosecufion witnesses are considered together in its face value, then the act attributed to the appellant does not travel beyond the scope of Section 304 Part II of the IPC. 10. On the other hand.Mr. J.A. Lohani, learned Panel Lawyer for the State appearing on behalf of the State opposed the appeal and submitted that the prosecution has proved its case beyond ali reasonable doubt and the evidence of eye-witness PW/10- Shailendri Bai and evidence\of dying declaration recorded by Sukhnand Prasad Banjare (PW/6), Naib Tahsildar vide Ex.P/7 are sufficient for drawing definite conclusion that the present appellant has caused homicidal death of-his father-in-law, deceased with intent to commit his murder and after appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel for 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 over the body of deceased has not been substantially disputed on behalf of the appellant. On the other hand, it is established by the evidence of Doctor D.S. Patel (PW/5), injury report vide Ex.P/8, Doctor J.K. (PW/20), medical examination report (Ex.P/5), Doctor S. Awasthy (PW/8) and autopsy report (Ex.P/12) death of deceased was homicidal innature. . 13. As regards complicity of the appellant in the crime in question, conviction is based on theevidence of PW/10 Shailendri Bai, wife of appellant and daughter of deceased and dying declaration made by deceased before PW/6 Sukhnand Prasad Banjare vide Ex.P/7. As per evidence of PW/10 - Shailendri Bai, appellant, son-in-law of deceased-was residing in the house of deceased along with his wife. Atlhe time of incident appellate came to the house of deceased after dirking liquor and took meals along with deceasedand while taking.meals deceased advised his son-in- I'1' law, appellant not to drink liqupr and do the work for livelihood, thereafter some altercation took place between the appellant and deceased and when the deceased went to answer the call of nature, the appellant followed the deceased hotding axe. She had also followed both appellant and deceased. Appellant caused injuries over the neck and chest of his fafher-in-law, deceased by axe as a result of which he fell down on the spot. When she made an alarm, Sanment, Sahodra and Chatur Singh came to the spot and appetlant fled away from the scene of occurrence. Thereafter, Chatur Singh (PW/7) took his injured father to Community Health Centre, Gharghoda from where the deceased was referred to K.G Hospital, Raigarh for further treatment where during the course of treatment hedied. In her detailed cross examination she has specifically deposed that the appellant had caused aforesaid injuries to the deceased by axe which she has seen. Defence has cross-examined this witness at length but has not been able to elicit anything in her cross-examination to discredit her testimony. •'• ..y. 14. As per evidence of PW/6 Sukhnand Banjare, Naib Tahsildar, on the directions of Sub Divisional Magistrate, he had recorded the dying declaration of deceased at Primary Health Centre, Gharghoda vide Ex.P/7 in which deceased made a dying declaration that his son-sin-law caused injuries over his neck and chest by axe. Defence has cross-examined this witness in which he has specifically deposed that he has recorded dying !•' declaration of deceased (Ex.P/7) at the instance of deceased and at the time of recording dying declaration deceased was in a position to speak which was also certified by the Doctor. The evidence of PW/6- Sukhnand Prasad Banjare, Naib Tahsildar inspires confidence relating to dying declaration. The evidence of PW/7 Chatur Singh finds corroboration from dying declaration (Ex.P/7) and promptly lodged FIR (Ex.P/8). The evidence of these witnesses are sufficient for drawing definite conclusion that the appellant has caused homicidal death of deceased. 15. As regards question of intention of appellant, intention isan agent of accused/assailant and the same can be inferred on the basis of circumstances; like weapon used, number of injuries and gravity of injuries and other circumstances. In the present case, appellant was in habit of drinking liquor and was not residing in his house but was residing in the house of his father-in-law. He was not doing any work for his livelihood. At the time of incident appellant was taking meals along with his father-in-law who advised him not to drink liquor and do work for livelihood, otherwise, he would go to his house. Thereafter, both took meals ^^1^'ll^s 16. 17. and when deceased was going to answer the call of nature, appellantholding axe caused injuries over neck and chest of his father-in-law. This shows grave intention of appellant for causing injuries and appellant has not caused injuries on a sudden provocation without pre-meditation but after advice of his father- in-law and after faking meals, he picked up an axe and caused injuries to his father-in-law from back side which shows that the <f. appellant with intent to caus^ death of his father-in-law, caused homicidal death. 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 passed by the trial Court. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. — Sd/- T.P. Sharsna Judee Sd/- R.N. Chandrakar Judge