HIGH COURT OF CHHATTISGARH AT BILASPUR \ • '.'•''•': DIVISIONBENCH CORAM: liil !:• iil8?-i< 1 .^•'^'y'! il iw HON'BLEMR. T.P.SHARMA fis HON'BLE MR. R.L. JHANWAR, JJ. GRIMINALAPPEAL No. 1157/2002 Jiten.dra Chandrakar, S/o Ankalu Chafodrakar, aged about 21 years, R/o Bhathapara Laxmanpur P.S. Chuikhadan Distt. Rajnandgaon - (C.G.) APPELLANT (INJAIL) VERSUS RESPONDENT State of Chhattisgarh, through P.S. Chhuikhadan. Memoranduin of Criininal Appeal U/s. 374(2) of Criininal Procedure Gode. Present:- Mr. Abhay Tiwari, A^vocate on behalf of Ms. Savita Tiwari, Advocate for the appellant. Mr. S.R.J. Jaiswal, P.L. for the State/respondent. ORAL-JUDGEMENT T.P. (Passedon 14/03/2011) The following iudgraerit of the Court was passed bv Sharnia, J:- 1. Challenge in this appeal is to the judgment of conviction arid order ofsentence dated 28/8/2002 passed by Additional Sessions Judge, Khairagarh, Session Division, Rajnandgaon (C.G.) m Sessions Trial No. 129/200 Iwhereby and where under after holding the appellant guilty for the Gommission of offence of culpable homicide amounting to murder of Rajendra Chandrakar, convicted the appellant under- Section 302 ^.•WSf^—^-^ "'^••''v^'ite's^ ® of the Indian Penal Code and sentenced imprisonment for life. Conviction is impugned on the ground that without any iota of evidence -sufficient for conviction of the appellarit, Court below has convicted and sentenced the appellant as aforementicfned arid fhereby committed an illegality. . '.. As per case of the prosecution, on fateful day of 29/3/2001 at about 1:00 P.M. on account of previous compliant made by complainant present appellant caught hold the Rajendra Chandrakar (since deceased) after condeinning him he took out the button knife from his pocket and caused 8 assaults over his head, neck and chest resulting into his instantaneously death. PW1 Harishchandra 8s PW2 Sitarara are present on the spot and they have seen the incident. PW1 Harishchandra went to the Police Station ChhuiKhadan and lodged First Infonnation Report within 55 minutes of the incidenfvide Ex. P-1. Investigating Officer left for scene of occurrence and after summoning the witnesses, inquest over the dead body of deceased Rajendra Chandrakar was prepared vide Ex. P-2. Blood stained and plain soil wer'e recovered frora the spotvide Ex. P-3. Dead body of Rajendra Chandrakar was sent to . Qovernment Hospital, Chhuikhadan vide Ex. P-6A. •'^'f--. ' "%. ^SA. l '.aif'' S '*<?'.. ,f: ;':^»';&''' @ SiS il'fl [ ••jf. PW4 Dr. Ashok Khare conducted autopsy vide Ex. P-6 and found following injuries:- (i) Incised wound of 1" x V4" x Ya" over right side of neck. (ii) Carotid and Jugular artery was found cut. (iii) .Incised wo'und of 3/4" x Y4" x W over left temporal region. <? (iv) Incised wound of 3/4" ^ %" x %" over right eye. (v) Ineised wound of %" x W x thoracic deep over left side of chest. (vi) Incised wound of 1" x ya" x thoracic deep over axillary area. . (vii) Incised wound of %" x Y4" x %" x thoracic deep over 4'h-rib area.. (viii) Incised wound of %" x l/4" x thoracic deep over leff axillary area. (ix) Incised wound of %" x Vi" x thoracic deep over left 3rd rib level. (x) 4th, 5th 8s7th ribswere found cut. (xi) Blood was found in thoraciccavity. (xii) 3 cuts were found on left lung. (xiii) 1 cut was found into left ventricle and pericardium was full of blood. Cause of death was fatal injury in yital part and death was homicidal in nature. 4, .During. course of investigation, appellant was taken into custody and he made discloser statemeht of knife vide Ex. P-4, same was r-ecovered at his instance vide . .Ex. P-5. Spot map was prepared vide Ex. P-8. Seized '•..-: articl.es weresentfor chemical exaraination vide Ex. P- • ^" ^ 9. Presenceof blood was confirmed on knife vide Ex. P- 10. 5. Statements of the witnesses were recorded under Section 161 ofthe CTode of Criminal Procedure, 1973 (in short 'the Code'), After completion of the investigation charge sheet was - flleH before the Additional Chief Judicial Magistrate, Khairagarh who in turn committed the case to the Court of Sessions, Rajnandgaon from where learned Additional Sessions Judge, Khairagarh, Session Division, Rajnandgaon (C.G.) has received the case on transfer for trial. 6. In order to prove the guilt of the appellant prosecution exarained as raaiiy as 5 witnesses. Appellant was examined under Section 313 of the Code where he denied the circum.stances appearing against him, innocency and false implication in crime in question is claimed. 7. After affording an. opportunity of hearing to the parties learned Additional Sessions Judge, Khairagarh, Session Division, Rajnandgaon (C.G.) has convicted and sentenced the appellant as aforementioned. 8. Mr. Abhay Tiwari, Advocate on behalf of Ms. Savita Tiwari, Advocate for "the appellant and Mr. S.R.J. Jaiswal, P.L. for the State/respondent are heard. W!J!AJi.l, 9. II. Judgment impugned, and record of Gourt. below perused. Leamed counsel for the appellant vehemently argued that evidence of PW1 'Harishchandra & PW2-Sitaram alleged eyewifnesses does not inspire confidence and trustworthy and are not sSfe to rely. As per evidence of these witnesses who are aged about 19 85 20 years have not fa-ied to intervene the incident, they were standing as spectator, this shows- cast doubts upon their evidence and their presence on the spot. Learned counsel for the appellant further argued that as per case of the prosecution and evidence of these wifnesses, on accouQ.t ofpervious coinpliant made by coinplainant, present appellant has caught hold the eollar with intent to teach him lesson 85 has caused injury to Rajendra Chandrakar, he has not caused any injury with intent to cause his death therefore, if evidence of these witnesses are considered together to be true then even act of appellant does not travel beyond the scope of Section 304 Part-I of the Indian Penal Code. Learned counsel for the appellant placed reliance in the matter ofShanmugain alias Kulandaivelu v. State of y ^-'. Tanail Nadu1 in which Supreme Court has held that on account of petty quarrel between complainant and deceased, assault made by spear and deceased died after 7 days shows that appellant has not caused any injury to deceased with intent to cause his death and act of appellant falls' wi&in the ambit of Section 304 Part-I of the Indian Penal Cod'e. 12. On the other hand, learned P.L. for the respondent/Sfate opposed the appeal and argued fhat in the present case, present appellant was having button knife and'-after taking out the same he has caused repeated fatal and dangerous injuries upon the vital part of the deceased Rajendra Chandrakar i.e. head, rieck SLri^. chest resulting into puncture of lungs and heart sKows grave intention ofcausing death of Rajendra Chandrakar, After appreciating the evidence available on record learned Additional Sessions Judge, Khairagarh,'Session Division, Rajnandgaon (C.G.) has rightly convicted and sentenced the appellant as aforementioned. 13. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the parties.* l.'2003CRI. L.J. 418 ;;.~T——-''?'^-S-.-: :!;..»--teel!' ; •^•^ "^ ! | il '^ J/ 2<fc VC^ II 1 ^ 14. In the present case, ,h.6micidal death as a result of fatal injury foiznd over the vital part of deceased Rajendra Chandrakar has not been substantially disputed on behalf of fhe appellant on the other hand, otherwise also established t)y the evidence of PW4 Dr. Ashok Khare and autopsy report Ex. P-6 and death was homiGidal in nature. 15. As regard the complicity of the appellant in crime in question, conviction of the appellant substantially based on the evidence of PW1 Harishchandra & PW2 Sitaram. alleged eye'witnesses. As per evidence of PW1 Harishcharidra, at about 1:00 P.M. on the date of incident, he was present along with deceased Rajendra Chandrakar and PW2 Sitaram near fhe temple, at the same time appellant came from his house and all of a sudden he caught hold the collar of Rajendra CUandrakar thereafter Rajendra Chandrakar was also caught hold the collar of appellant then appellant told Rajendra Chandrakar that why he has caused annoyance to his relatives thereafter appellant and Rajendra Chandrakar, abused each other ' then appellant toqk out the knife from his pocket arid 1 caused as many as 8 injuries'to Rajendra Chandrakar thereafter he fled from the spot, fhey took the»injured 1 . :: :1 ;: . : ] 'gajendra Chandrakar to the Hospital, Chhuikhadan l^ il^ » ,,•'".." T.s'1^. A' i-:.^- »; 1 ^V^J^. g I, '^-""•y | i';%..v<>y 16. 17. 18. ^\NY -^yii where doctor informed that Rajendra Chandrakar has died then he went to the Police Station, Chhuikhadan and lodged First Information Report Ex. P-1. His evidence is corroborated by the evidence of PW2 Sitaram. Defence has cross-examiried these witnesses at length, PWlHarishGhandrahas-denied the suggestioa in Para- 13 of his crQss-examination that deceased Rajendra Chandrakar has tried to assault the appellant then with a view to save himself appellant took out the knife and moved in air. In their detailed cross-examination defence has not been-able to illicit anyfhing to discredit their testimony relating to the fact that appellant has caused 8 injuries to deceased Rajendra Chandrakar. After appreciating the evidence of both the eyewitnesses, frial Court has arrived at a finding that appellant has caused homicidal death of Rajendra Chandrakar. Finding is based on legal, credible, clinching and reliable evidence sustainable under the law. As regard fhe motive for commission of offence is concerned, motive is only aid in criminality and loses its importance. In case * of direct evidence, even ofherwise motive can be inferred on the basis of nature ~x ;s... '^;""',rf»- 3 of injury, part of the body where injury was caused, weapon used and other like circumstances. 19. In the present case, while deceased Rajendra Chandrakar was standing near the temple under the tree appellant came and caught hold his collar fhereafter deceased Rajetidra Chandrakar also caught hold the collar of appeUant then appellant and deceased abused each other then appellant took out the knife from his pocket and caused as many as 8 injuries over neck, head and chest resulting into cuts, fracture of 3 ribs, puncture of left lurfg in 3 places of heart, cutting of carotid and jugular arteries, injury found over the chest were not superficial, they were having sufficient depth up to thoracic cavity and has effected the lungs and heart and this is not a casual assault. 20. As held in case of Shanmugam alias Kulandaivelu (Supra) on account of petty quarrel, injury was caused to deceased who died after 7 days, in the present case, otherwise there was no occasion for quarrel or dispute appellant himself came to deceased Rajendra Chandrakar and has caught hold his collar thereafter incident took place. Appellant himself was aggressor \..:^:d:^r^rrm: '•^S'IE~-^;^!~;;;i3-j; ni 10 9 •elit• preparation with button knife shows his grave intention of causing homicidal death of Rajendra Chandrakar therefore, the case ofShantnugain alias Kulandaivelu (Supra) is distinguishable on the ground offaets. 21. After appreciating, the evidence learned Additional Sessions Judge, Khg.iragarh, Session Division, Rajnandgaon (C.G.) hass . rightly convicted and sentenced that appellant under Section 302 of the Indian Penal Code. 22. On close scrutiny of the evidence, we do not find any illegality in the conviction and sentence of the appellant. Consequently, criminal appeal is devoid of merits, sam.e is liable fo be dismissed and is hereby dism.issed. —». Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge f" •^i"^ 1