HIGH COURT OF CHHATTISGARH AT BILASPUR Division Bench Coram: Hon’ble Shri T.P. Sharma & Hon’bie Shri R.N. Chandrakar, JJ. Criminal Appeal No. 854 of 2006 Appellant Krishna Kumar Krishna Sahu, (in jail) son'of Jeevan Sahu, aged about 35 years, profession wielding work, residence of Shanti Nagar, Kumhari District Durg, Chhattisgarh. “of Vs. State of Chhattisgarh, through Police Station Kumhari, District Durg (CG). 4 Respondent (Criminal Appeal under Section 374 (2) of the Cr.P.C.) Present: Mr. N.S. Dhurandhar counsel for the appellant. Mr. Neeraj Mehta, Panel Lawyer for the State. JUDGMENT (Delivered on 15—1 —201 1) 1 Per T.P. Sharma, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 3-11-2006 passed by 2nd Additional Sessions Judge, Durg, in Sessions Trial No. 265 of 2005, whereby and whereunder learned 2nd Additional Sessions Judge after holding the appellant guilty for commission of culpable homicide amount to ') @ murder of Raghunandan Sinha, convicted him under Section 302 ofthe IPC and sentenced him to undergo imprisonment for life. 2. Conviction of the appeiiant is impugned on the ground that without any iota of evidence, the court beiow has convicted and sentenced the appellant as aforementioned and thereby committed illegality. As per case of prosecution, on fateful day of 4-2-2005 at about 5.30 a.m., appellant was bathing in a pond, after keeping his soap and other articles on stone, at that time deceased Raghunandan Sinh‘aTwent to pond and occupied the stone where articles of appellant were lying. Being asked by the appellant, deceased i abused him and tried to assault by shoe, then the appellant lost his temper and caused as many as 27 injuries, resulting into death of deceased Raghunandan Sinha. Thereafter, the villagers came to the spot and took the injured to Medical College Hospital, Raipur, where he died during the course of treatment. Incident was informed to Police by Pareton Sinha (PW/1) vide EX.P/1 and after the death of Raghunandan Sinha merg intimation was given to Moudahpara Police Station by the hospital authorities vide Ex.P/2O from where it was sent to Police Station Kumhari, Durg and registered vide Ex.P/20. After summoning the witnesses ‘vide Ex.P/5, inquest over the dead body was prepared vide EXP/6, one bicycle, one pair of shoes, tooth powder, soap case with soap, one lungi were seized vide Ex.P/2, spot map was prepared vide " ‘ NEx.P/4, blood stained soil, plain soil, slipper, one tooth brush and tongue cleaner were seized vide Ex.P/9, dead body was sent for autopsy to Medical College, Raipur, where Dr. Shivnarayan Manjhi 1) 2) 3) 4) 5} 6)’ 7) .8) 9) 10) 11) 12) 13) 14) 15) (PW/9) conducted autopsy vide Ex.P/15 and found the following injuries: incised wound over occipital region of 6x 0.5cm upto bone deep; incised wound of 6x 0.2 cm x .5cm at posterior aspect 2cm beiow injury No.1. incised wound of 6 x 0.5cm over Ieft occipital region above injury No.1. incised wound of 6 x 0.5 cm x 1cm over left parietal region just posterior to frontal eminence. incised wound of6 x .5cm skull deep. . incised wound of 5.5 x .1 cm over right parietal region. incised wound of 6x.5cm upto bone deep at right occipital region. incised wound of 6x05 cm upto bone deep over occipital region. . incised wound of 6x0.8cm. into bone deep just above pinna ‘ incised wound with contusion over back of 6.5cmx0.2cm; incised wound with contusion of 4x.2cm over back. incised wound with contusion of 4x.2cm over back. incised wound of 6x.2cm over back. incised wound of 4x.2cm over back. incised wound With contusion of 4x.2cm over back. 16) 17) incised wound of 7x.2cm over back. . incised wound of 6x.2x.5cm over back. 18) Incised wound of 8x.2cm over back. 19) lncised wound of 9 x .2cm at right scapular region, incised wound of 5x.2 cm, 3.2x.2cm, 3x.2cm, i 2.5x.2cm, 6x3cm over back, contusion of 4x.2cm over back. 20) Contusion of 4x.2cm over back. 21 ) Contusion of 3x.2cm over right eye—brow. 22) Contusion of 6x1.5cm over orbital ridge rightside. ‘ 23) Contusion of 3x1.5cm overleftring finger. «w: 24) Contusion over left side chest of 2 x1cm 25) lncised wound over Ieft inguinal region 3x1.5x.5cm. s 26) Abrasion with contusion over left thigh of 7x.2x.3cm; and Abrasion with lacerated wound over both the knees and opined that mode of death . was shock. Patwari prepared spot map vide Ex.P/14, under-garments of appellants were seized vide Ex.P/12, Hawai chappals were identified by wife of the appellant vide Ex.P/13. During course of investigation, appellant was taken into custody vide EXP/23 and he made a disclosure statement of axe vide EX.P/10 and same was recovered at his instance vide EXP/11. Viscera and clothes of deceased were seized vide Ex.P/18 and seized articles were sent for chemical examination to FSL, Raipur and presence of blood over axe and clothes of deceased was confirmed by FSL. Statements of witnesses were recorded under Section 161 of the ‘ Cr.P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Additional Chief Judicial 27) Magistrate, Durg, who in turn committed the case to the Court of Sessions Judge, Durg. Learned Additional Sessions Judge received the case on transfer for trial, who framed charge under Section 302 of the IPC against the appellant. In order to prove the guilt of the appellant, prosecution examined as many as 1 7 witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. After affording opportunity of hearing to the parties, learned 2nd ‘ r K Additional Sessions Judge convicted and sentenced the appellant as aforementioned. We have heard learned counsel for the parties, perused the judgment impugned and record ofthe trial court. Mr. N.S. Dhurandhar learned counsel for the appellant vehemently argued that in the present case no witness had witnessed the incident andconviction is based on conjectures and surmises, although 27 injuries were found over the body of the deceased. As per initial case of prosecution, appellant was provoked by deceased when he tried to assault the appellant by raising shoe, then appellant lost his temper and caused injuries. lf the evidence adduced on behalf of the prosecution is considered together on its face value, then the act of the appellant squarely falls within the . ambit of exception 1 of Section 300 of the IPC and appellant has not caused murder of deceased but his act squarely falls within the ambit of Section 304 part ll of the IPC. u~ 11. On the other hand, Mr. Neeraj Mehta, Iearned Panel Lawyer on behalf of the State opposed the appeal and submitted that conviction is based on the evidence of Paretan Sinha (PW/1), Jagnandan Sinha (PW/2), Shivnarayan Sinha (PW/3), Ganga Prasad (PW/4), Lakhanlal Yadav (PW/5), Khiiawan (PW/6), Mansharam Sahu (PW/7) & Maiikram (PW/8) before whom the deceased made a dying deciaration that the appellant has caused wit repeated injuries to him and the evidence of the aforesaid witnesses inspires confidence and trustworthy and same are § ‘ , sufficient for conviction of the appellant although the incident took v place on sudden provocation and on fickle ground but while causing 27 injuries, appellant has taken undue advantage and acted in unusual and cruel manner. After appreciating the evidence available on record, the .court below has rightly convicted and sentenced the appellant as aforementioned. 12. ln order to appreciate the arguments advanced by learned counsel for the parties, we have examined the evidence adduced on behalf M 7 xx. ofthe prosecution. 1 13. ln the present case, homicidal death as a result of fatal injuries found over the body of deceased Raghunandan Sinha, has not been disputed on behalf of the appellant. Even otherwise, it is also established by the evidence of Dr. Shivnarayan Manjhi (PW/9) and Uautopsy report vide Ex.P/15 that death of deceased was homicidal in nature. l As regards the complicity of appellant in crime .in question, conviction is based on the evidence of Paretan Sinha (PW/1), Jagnandan Sinha (PW/2), Shivnarayan Sinha (PW/3), Ganga Prasad (PW/4), Lakhanlal Yadav (PW/5), Khiiawan (PW/6), Mansharam Sahu (PW/7) & Malikram (PW/8) and circumstances shown by these witnesses. As per evidence of the aforesaid witnesses, appellant was present at the pond and he was bathing x and deceased was present near the appellant. Deceased sasta'ined 27 injuries and except appellant and deceased no other person was present near the place of incident. The offence was committed in secrecy and the appellant was under obligation to offer an explanation, but he has not offered any explanation. Deceased Raghunandan Sinha made a dying declaration before the aforesaid witnesses that appellant has caused repeated injuries to ’him. The evidence of the aforesaid witnesses reveals that only appellant and deceased were present on the spot. Deceased sustained 27 injuries and he made a dying declaration before them. The evidence of these witnesses are sufficient for drawing a definite conclusion that the present appellant has caused homicidal death of deceased. ' 15. As regards question of motive is concerned, prosecution has not proved previous enmity for commission of offence. As per material collected on behalf of the prosecution, the incident took place on \ sudden provocation when the articles owned by the appellant were used by the deceased and deceased tried to assault the appellant, then theappellant assaulted him by axe which he was keeping for As per submission of defence, case of the collecting wood. Appellant caused injuries to deceased on sudden provocation when he was provoked by the deceased but the appellant has caused 27 injuries out of which nine injuries found over the head of the deceased i.e., vital part of the body were incised wounds. appellant squarely falls within the ambit of exception 1 of Section 300 of the IPC which reads as follows: r “Exception 1.—When culpable homicide is not umurder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and‘sudden provocation, causes the death of the person who gave the provocation or causes the death ofany otherperson by mistake or accident. The above exception is subject to the following provusos: First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact’f. 16. ln the present case, appellant has caused injuries to deceased on sudden provocation when he was provoked by the deceased but while causing injuries, appellant has taken undue advantage and has acted in unusual and cruel manner and caused 27 injuries to a \ l l a person who was not having any weapon or was not in a position to protect himself. Virtually, the act of the appellant squarely falls \ within the ambit of Section 300 coupled with exception 4 of the IPC as he has acted in unusual and cruel manner. 17. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted and sentenced the appellant as aforementioned. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment of conviction and order of sentence of the couuft below. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. r w; Sd/- T. P. Sharma {L Kndiandrakar sal- f Judge Judge