?p> 'y. Us •;.'' Ss^fi !?Sis lig?! BEFORE THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CG) CRIMINAL APPEAL NO.1^^^ / 2011 APPELLANT In Jail P.R. Nfl........^-;--;,"^-;^)^^ ^"'^ss^ O^d...........-'--^- RESPONDENT : Kartik Ram Rathiya S/o Sukul Singhy Rathiya, aged about 36 years, R/o Village Kangapara PasarKhet, Police Station Kartala, Distt. Korba (C.G.) VERSUS State of Chhattisgarh : through Police Station - Kartala, Distt. Korba (C.G.) CMMINAL APPEAL UNDER SECTION 374 (21 OF THE CODE OF CRIMINAL PROCEDURE HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH Coram: HON'BLEfl/IR.T.P.SHARIVIA & HON'BLE IWR. R.N. CHANDRAKAR, JJ. Appellant (InJail) Respondent Criminal Appeal No. 495 of 201 1 Kartik Ram Rathiya S/o Sukul Singhy Rathiya, aged about 36 years, R/o Village Kangapara Pasarkhet, Police Station Karala, Distt. Korba (C.G.) Versus State of Chhattisgarh : Through Police Station—Kartala, Distt. Korba (C.G.) (CRMINAL APPEAL UNDER SECTION 374 (2)OF THE CODE OF CRIMINAL PROCEDURE) Present:- Mr. Vinod Kumar Sharma, counsel for the appellant. Ms. Madhu NishaSingh, Panel Lawyer for the State. ORAL JUDGMENT (Passed on 09th August, 2011) PerT.P.Sharma,J.:- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 07.04.2011 passed by the Sessions Judge, Korba, in Sessions Trial No.30/2009, whereby & whereunder learned Sessions Judge after holding the appellant guilty for commission of culpable homicide amounting to murder of Chaitram (since deceased) convicted under Section 302 of the I.P.C. and sentenced him to undergo imprisonment for life and to pay fine of Rs.1000/-, in default of payment Qf fine to further undergo R.l. foroneyear. 2. Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as aforementioned and thereby committed illegality. 3. As per case ofthe prosecution, appellant and deceased are real brother. Both were residing together in thesame house. On 30.10.2008 between w 10.00 to 11.00 am, on account of previous family dispute appellant took out axe and caused single blow over temporal region of deceased Chaitram, resulting into his instantaneous death. Awanti Bai (PW/1) child witness waspresent on the spot. She has seen the incident. She informed the incident to her another uncle and relatives, thereafter they went to police station and lodged F.1.R. vide Ex.P/2. Mergwas recorded vide Ex.P/1. Investigation officer left for scene of occurrence, after summoning the witnesses vide Ex.P/7, inquest over the dead body of deceased was prepared vide Ex.P/3. Dead body was sent for autopsy to Community Health Center, Kartala vide Ex.P/9. Dr. V.K. Singh (PW/11) conducted autopsy vide Ex.P/9-A and found flowing injuries: 1. Incised wound over left temporal region of6 % x2 %x7 % cm. brain and spinal code were found cut. Cause of death was shock and mode was homicidal in nature. 4. During the course of investigation, appellants were taken into custody. Appellant made disclosure statement of axe vide Ex.P/4, same was recovered at his instance vide ExP/5. Blood stained soil and plain soil were recovered from the spot vide Ex.P/11. Spot map was prepared vide Ex.P/10. Seized articles were sent for chemical examination vide Ex.P/8. 5. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the 'Code') and after completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Kartala, who in turn committed the case to the Court of Sessions, Korba, which Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as 11 witnesses. Statement ofthe accused/appellant was recorded under Section 313 of the Code where he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 7. After providing opportunity of hearing to the parties, learned Sessions Judge, Korba convicted & sentenced the appellant as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellant submits that conviction is substantially based on evidence of Awanti Bai (PW/1), 13 years aged relative and child witness. Her evidence is full of exaggeration and contradiction. As per her evidence, appeNant has caused three repeated assaults over temporal region by axe, but as per evidence of Dr. V.K. Singh (PW/11) only single injury was found over left temporal region, no any bony injury was noticed, which shows that evidence of Awanti Bai (PW/1) does not inspire confidence and trustworthy and not safe to rely without further corroboration. Even otherwise this is a case of single injury and no other injury was found that too on accouht of family dispute, which shows that appellant has not caused homicidal death of deceased with intent to cause his death. Therefore, the act of appellant does not travel beyond the scope ofSection 304 Part-11 ofthe I.P.C. 10.0n the other hand, learned Pan&l Lawyer for the State opposed the appeal and submits that appellant is brother of deceased Chaitram and has caused fatal injury over head of deceased by axe resulting into his instantaneous death, which shows that appellant has caused homicidal death of deceased with intent to cause his death. Conviction is based on evidence ofAwanti Bai (PW/1) which inspires confidence & trustworthy and same is sufficient for convicting appellant. 11.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12. In the present case, homicidal death of deceased Chaitram as a result of fatal injuries found over his head has not been substantially disputed on behalf of the appellant, on the other hand, also established by the evidence of Dr. V.K. Singh (PW/11) and autopsy report Ex.P/9-A that the death was homicidal in nature. 13.As regard to complicity of appellant in the crime in question is concerned, conviction of the appellant is substantially based on evidence of Awanti Bai (PW/1), child witness of 13 years age shows that at the time of incident appellant came from outside, took out axe and caused three injuries over temporal region of his father resulting into his death. She shouted for help and then he informed incident to her another uncle Mangal Singh (PW/2). They went to police station and gave merg intimation vide Ex.P/1 and lodged F.I.R. Ex.P/2. In her detailed cross-examination, she has specifically deposed that she has seen the incident and appellant has caused aforesaid fatal injury resulting into death of deceased. Learned Sessions Judge has examined this witness after satisfying itself that whether the child witness is able to answer the questions rationally. Her evidence is not fully corroborated by the medical evidence and as per medical evidence only one injury was found over temporal region, even otherwise, as per merg intimation Ex.P/1 and F.l.R. Ex.P/2, appellant has caused single injury on account of family dispute. He has not caused repeated injuries although he was having sufficient opportunity. Evidence of Awanti Bai (PW/1) relating to repeate.d three injuries appear to be exaggerated and it can safely be separated. In the light of merg intimation Ex.P/1 and F.I.R. Ex.P/2 lodged by her and medical evidence, appellant has caused single blow by axe over the head of deceased. Evidence of Awanti Bai (PW/1) who was present near the place of. incident does not inspire confidence and trustworthy to that extent and the same is not sufficient for drawing inference that appellant has caused homicidal death of deceased. 14.As regard the question of intention, it can be gathered from the nature of injuries, part of body affected, weapon used and like other circumstances. 15.As per Merg intimation Ex.P/1, on account of family dispute, appellant came from the outside and caused single blow over the head of deceased. Appellant was having sufficient opportunity but he has not caused repeated injuries and no bony injury was detected, which shows the force and impact of the injury. This evidence and circumstances show that at the time of causing such injury appellant was having knowledge that by his act deceased may die. He has not caused such injury and homicidal death with intent to cause death ofdeceased. 16.Considering the aforesaid factum and circumstances of the case, appellant has caused aforesaid injury without intention to cause death of deceased. In our considered view, act of the appellant does not travel beyond the scope of Section 304 Part-11 of the IPC. 17.While convicting the appellant under Section 302 ofthe I.P.C., the Court below has not considered the aforesaid circumstances in order to find out the intention for causing homicidal death of deceased and thereby committed the illegality. 18.For the foregoing reasons, the appeal is partly allowed. Conviction ofthe appellant under Section 302 ofthe I.P.C. is altered to Section 304 Part-11 of the I.P.C. and sentenced to undergo R.l. for six years and to pay fine of Rs.5,000/-. In default of payment of fine, further to undergoadditional R.l. foroneyear. Sd/- T.P. Sharma Judge Sd/- R.N. Chandrakar Judge t/l|iiV