HIGH COURT OP CHHATTISGARH AT BILASPUR Criminal Appeal No. 1305/2002 €• APPBLLANT [In Jail) Gaaesh Ram Kiimar Alias Buddu Aged 33 years, s/o Prem lal Mahar rcsident of SiUijor P.S. Deobhogh District Raipur (CG) VBRSU8 RBSPONDBNT State of Chhattisgarh CRIMINAL APPEAL UNDBR 8BCTION 374 ( 2 1 OP THE CODE OP^RIMINAL PROCEDURE Appearance: Shri D,R,Sharma, Sr, Advocate wifh Ms, Swati Shukla, counsel for the appellant Shri Ravmdra Agrawal, Paael Lawyer for ffaie State. Divisioa Beach:- Hon»bleShri T.P. Sharma 85 Hoa'ble Slu-i R.L.Jhaawar.JJ Per T.P.Sharma, J. ORAL JUDOMBNT (04.02.2010) 1. ChaUenge ia fhis appeal is to the j^idgment of conviction an.d order ofsentence dated 12.11.2002, passed by fhe Sessioas Judge, Raipur (CG) m Sessions Trial No.232/2002, whercby aBd whereunder fhe leamed Sessions Judge after holdiag fhe appeUant guilty for coiiimission of ciilpable honucide, amoiintiag to murder of Narayaa aad causmg simple iajuiy to Dhaniram, convicted fhe appeUaat under Sections 302 aad 323 of fhe IPC aad sentenced to undergo iaiprisonment for life aad to pay a fine ^xt ^: // u. of Rs.200/-, ia. defaiilt of payment of fine to further uiidergo RJ. for 2 inonfhs, aad R.I. for 1 year. 2. The judgment ioipugned is chaUenged on the grouad that wifhout aay iota of evidence, fhe Court below has convicted and sentenced fhe appeUant as above aad fhereby coinmitted iUegalily. 3. The case of the prosecution ia brief is that on the fateftd day of 9.5.2002, at about 7.00 a.m. fhe appeUaat assaulted Narayaa by a stone over his head aad when Dhaairaiui (PW-3) tried to iateryene, fhe appeUaat also assaulted hini by fhe stoiie over his head. Then wifh the help of soxne other villagers, ffaey caught hold of fhe appellaat, The deceased died on fhe spot. Dhaniram went to Police Station aad lodged FJ.R. vide Ex. P/8. Merg iatiDiation was recorded vide Ex, P/7. Dhaniram was seut for medical exaiamation vide Ex, P/1 aad one lacerated wouiid over his head in the size of l/2 cni x x/2 cm was found by Dr, Ashok Chaadra Wadhwa (PW-1) vide Ex, P/2, Inquest over flie dead body of fhe deceased was prepared vide Ex. P/11. Dead body was sent for autopsy vide Ex. P/3. Autopsy was conducted by Dr. A. Jawalkar (PW-2) vide Ex.P/4 and found followmg mjuries: i. Multiple injury over the head aad brain was rupturcd ii. Bone of fhe head was ruptured aiid blood was comiiig out. The Doctor opiaed fhat tihie deafh was homicidal m nature, Spot map was preparcd vide Ex. P/10. The accused/ap^Uant was taken iiito custody. He raade disclosure statement of stone vide Ex. P/12. The stone was recovered at fhe mstaace of fhe appeUaat vide Ex. P/13, Shirt of fhe appeUant was seized vide Ex. P/14. Blood stamed soil and plain soil, chappal and one stick were seized fronx fhe spot vide Ex. P/15. Seized articles were sent for chemical examiaation aad presenceofblood over fhe stone aad shirt offhe appeUaat was confirmed vide Ex. P/16. Stateaients of fhe witaesses were recorded under Sectioai 161 of the Code of Crimiaal Procediire, 1973 (m short "Code"). 4. Afber corapletion of uivesti^ation, charge sheet was ffled before fhe Judicial Magistrate First Class, Gadyaband, who in tuni, coinniitted fhe case to fhie Court of Sessions, Raipur, who conducted fhe torial. 5. In order to prove fhe gmlt of fhe accused/appdUant, prosecution has examined as maay as 5 witoesses. Accused was examiaed iiader Section 313 offhe Code, ia which, he denied fhe circuinstaaces appeanng agaiast him, pleaded ianocence and false implication. 6. After affording opportunily of heanng to fhe parties, learaed Sessions Judge has convicted aad sentenced the appeUaat as aforeraentioned. 7. We have heard Shri D.R.Sharma, learaed Senior coiinsel for fhe appeUant aad Shri Raviadra Agrawal, learaed PaMel Lawyer for fhe State, perused the judgiaent aad rccord offlie trial Court. 8. Leanied counsel for the appeUant veheinently argued that fhe present appeUant was not knowiag to the deceased and ftiex^ was no motive wifh the appellant for causiag fhe death of Narayaa. The appeUaiit was passing beside the place of iocideiat aad he has been falsely impUcated m fhe crime m question. 9. On fhe ofher haad, leamed counsel for fhe State opposed fhese arguments aad submitted fhat fhe coaviction of fhe appeUant is based on fhe evidence of Dhaairaai (PW-3) aad KapHas (PW-4). The appellant was apprehended on fhe spot aad his presence is not disputed ia fhe present case. ,-,-^'^,;% .r'' ^ "'%:^ 4 L • ii. 10. In order to appreciate the argunients advaaced on behalfof fhe parties, we have exainined fhe evidence adduced on behalfof fhe prosecutton. 11. In fhe present case, fhe hoirdcidal deatih as a result offatal injuiy to Narayaa has not been substantiaUy disputed by ftie appellaiit On fhe ottier haad, it is estabUshed by fhe evidence of Dr. A. Jawalkar (PW-2) aad autopsy report Ex, P/4, which reveal that the deceased has died as a rcsult of fatal iajury and deafh was honiicidal ia nature. The fatal iajuxy found over fhe head of Dhaniram (PW-3) has also not been substantiaHy disputed, ofherwise it is also estabUshed by fhe evidence of Dhariram (PW- 3) and Dr, Ashok Chandra Wadhwa (PW-1) aad Hiedical report Ex. P/2. 12. As regards the coinpUcity offhe accused/appeUaiitia criine ia question is concemed, fhe conviction is based on the evideiace of eye-witoesses Dhaairam (PW-3) aad Kapilas (FW-4). Dhaairam (PW-3) is an injurcd witaess. He has deposed that at the time of iacident KapUas (PW-4) came to him aad iDformed fhat one person is killing Narayaa. Then he went by his cycte towards fhe place ofiacident, at fhat time, fhe accused/appeUaMt was causiag injury over fhe head of Narayaii. After pushing his cycle, he went near fhe accused aad caught hold of him, but he did not stop and also assaulted Mm by fhe stone over his head and finaUy he tied fhe haads of fhe appellaat by clofh and viUagers cacae to fhe place of incident They apprehended fhe appeUant. Thereafter, he went to PoUce Station and lodged fhe report. His version is weU corroborated by Kapilas (f3W-4). Defence has cross exainined those witnesses at length, but has uot been able to eUcit anytihing m fheir cross examiaation to discredit fheir testlmony, They arc not iaterested witnesses. .^'/ 'i^^^'- ^-. Dhaiurain (PW-3) is aa injurcd witaess. Evidence of Dhaniram (PW-3) and Kapilas (PW-4) inspires confidence ofthe Court and is sufficient for drawiag an inference fliat fhe appeUant is fhe person, who has caused homicidal death of fhe deceased and has also caused inultiple iiyuiy to Dhaairam. (PW-3). 13. As regards fhe question of motive is conceraed, motive only aids ia crumiiallty, ia case of direct evidence it los^s it importance. Motive can be iaferrcd on the basis of fhe weapon used, part ofthe body effected, nature ofinjiuy aad ofher similar ctrcuinstaaces. sunita 14. In fhe present case, fhe appeUaat has caused fatal iojxuy over the head of fhe deceased i.e. vital part of the body aad has caused iastantaneous deafh of ftie deceased, which shows his grave mtention for causiag the deafh of Narayaa. 15. After appreciation of fhe evidence available on rccord, fhe learaed Sessions Judge has convicted aad sentenced ftie appeUaat as aforenientioned. 16. On close scrutiny of the evidence, we do aot fmd aiiy illegaUly of iafirmily in the judgment inipugned warmntmg iaterference by fhis Court. 17. The appeal is devoid ofmerits and is Uable to be disxnissed, Accordingly, it is disniissed. — Sd/- R.L. Jhanwar TP.Sharma i Judge Judge