^^^K^^^^S^^^^S HIGH^QURT QF CMHATTISGARH AT BtLASPUR DB: Hon'bleShri Dhirendra Mishra & Hon'bteShriR.N. Chandrakar. JJ. Criminal Appeal No. 177/2004 APPELLANT (In Jail) Vs. Respondent Prosecution Pardeshiram son of Pusauram Sonkar aged about 26 years, resident of BhardeQ-para Aarang Distt.Raipur (C.G.) State of Madhva Pradesh Throuah yi s.o- ng, Distt. Raipur (C.G.) iCnminai Appeal under Section 374(2) ofthe Cr.P.C.) Present: Shri J.A. Lohani, counsei for the appeiiant. Shri G.D. Vaswani, Govt. Advocate for the State. ORAL JUDGMEi^T (04.08.2Q10) Ths followjng judgment of the Court was deiivered by Dhirendra Mishra, .1. The appellant has preterred this criminal appeai under Section 374(2) QT tne Code ot Criminai Procedure against the judgment of conviction and ordsr of sentence dated 04"' March, 2003 passed in Sessions Trial No.378/02, whereby learned Sessions Judge, Raipur, after holding the appeliant guilty of committing murder of ^rtikram, has convlcted the aDDeslant under Section 302 of the tndian Penas Code and sentenced him to undergo lire impnsonment and to pay fine of Rs.100/-, in detault of paym.ent of fine to further undergo R.i. for one month. 2. Case of the prosecution, as projected in the impugned Judgment, is that, tnere was a dispute in reiation to partition of iand between the appellant and deceased Kartikram and there was frequent quarrel between them on this account. On the date and ttme of the incidenfe the deceased fSi iaaiB A ^l/ returned nome arter carrying manure by builock cart and whiie he was preparing to carry another trip, appeilant raised dispute with him regarding erection of waii. However, the quarrel was subsided by Jagaisn. After aeparture of Jagdlsh, when the deceased was carrying manure, the appeilant rushed and climbed on his cart and assauited Kartikram with a shovel. When the deceased fied to save his iife, -the appeiiant caught him after cnasing and assaulted hlm with a heavy stone iying there on his head, mouth and temporal region and kitled him. 3. Arjun Ram (PW-1) gave merg intimation (Ex-P/1) and lodged tirst infQrmation report (Ex-P/2) at 8.00 hours naming the appellant as perpetrator ot the offence. After registering the crime, police proceeded for the scene of occurrence, prepared inquest (Ex.P/3) over the person of deceased and thereatter dead body was sent for autopsy to Primary Heaith Centre, Aarang (Ex-P/14). Dr. G.P. Chandrakar (PVV-5) performed autopsy ana gave hls report (Ex-P/7). On the memorandum (Ex-P/5) of the appellant, weapon of oftence - shovel was taken into possession vide Ex-P/4. Site pian wasprepared by investiaating offteer vide Ex.P/17. After compieting investigation, charge sheet was fiied in the Court of Judicial Magistrate First Ciass, Raipur, who in turn, committed the case to the Court of Sessions Judae for trial. 4. Learned triai Court framed charge under Section 302 of the Indian Penal Code against the appeiiant, who abjured his gullt. 5. Prosecution in order to establish its case, examined six witnesses in aii and thereafter, statement of accused was recorded under Section 313 of the Code of Grlminal Procedure in which he denied the circumstances .<!>• % appeanng against him in the prosecutjon case and pieaded 'nnocence and false impiication. The appeilant has aiso examined Jagdish Sonkar in his aetence. 6. T"e tnai Court, after hearing counsel for the respective parties, conyicted and sentenced the appellant as mentioned in paragraph one of th's ludament. 7. Homicldai death of deceased tortikram is not in djspute. Even otherwise, from the evldence of Sukhwati Bai (PW-2), who ciatmed to have wnnessed the assauit by shovei and heavy stone on the head of the aeceased and further considering the evidence of Dr. G.P. C-handraKar (PvV-5), wno has prepared postmori:em report and proved it and found the tollowing injuries on the person of deceased and opined that the cause of death is due to syncope and brain hemorrhage and homicidal in nature, homicidai death of Kartikramis established. External injuries (1) incised woundof size 8 cm x 4cm bone deep Just above right eye on scaip. (2) incised wound of size 7 cm x3 cm bone deep on right temporal bone. (3) Lacerated wound ot size 6 cm x5 cm bone deep left temporat region. On internal examination, he found ciotted biood tnside the brain. 8. Learned counse! for the appetlant vehementiy argued that Sukhwati Bai (PW-2), claimed to have ^A/itnessed the incldent from her home, whereas, the incident occurred on the viliage lane. P.S. Netam (PVV-6), who riBI prepared the spot map (Ex-P/17) and proved the same, has categoricatly deposed in paragraph 8 of his deposition that the ptace of incident where the dead body of Kartikramwas lying, marked as No.4, is not visible from the house of the deceased, which has been marked as Ex-P/3 and therefore, it was not possible for Sukhwati Bai (PW-2) to witness the incident from her house. He further argued that there is discrepancy in the version of Arjun (PVV-1) and his mother Sukhwati (PW-2) regarding the cause of quarrel between the deceased and the appetlant as Arjun (R/V-1) clalms that the dlspute was in relation to the erection of wali, whereas, Sukhwati (PVV-2) has deposed that quarre! was on account of agriculturai field reiated dispute. Finally, st was argued that the incident occurred on the spur ot moment, without premeditation, as a result of sudden quarrel between the appellant and the deceased and in the circumstances, the trial Couri was not iustified in convictinfl the appeliant under Section 302 of the IPC and the Qttence does not travel beyond Section 304 Part-1 or 11 of the 1PC. 9. On the other hand, learned counsei for the State supported the impugned judgment. 10. We have heard iearned counsel for the parties and perused the record as also the impugned judgment. . , 11. Convtetion of the appellant is based on the evidence of eyewitness Sukhwat] Bai (PVV-2) and complainant Arjun (PW-1). Sukhwati (PW-2) is the wite of the deceased. She has deposed that the appeitant is son of her Jerh. The incident occurred in the beginning of the month - jet. Her husband had aone to the field with manure In his buiiock cart. He was •% returning from the field, at that time, the appestant stopped hls buiiocK can on tne vniage lane and assautted him by shovel, her husband had not reacned home. At that time, Kartikram tled for hls life, however, he was chased by the appeliant, who caught him by hls coiiar and pushed him "n the grouRd, plcked up a heavy stone and smashed it on his head. He was drenched in blood and died on the spot. The appeilant assaulted her husband due to agricuitural field related quarrei. Her son Arjun (PW-1) had gone to work in baai. Her grand son caiied him from there. In the cross- examination, she has deposed that her husband had gone to field, she was workina inside her home. The piace where her husband was assauited b" the appeilant is very ciose to her house. When her husband was returning from the fieid, she was inside the house, and when the appellant stopped her husband and assautted him, she had come out and witnessed the incident. There is no suggestlon by the defence to this witness that the piace where the incident occurred is not visibie from her home, therefore, the argument of defence by learned counsei for the appeliant based on the ste pian (Ex-P/17) proved by investigating officer cannot be accepted. 12. Version of Sukhwati Bai (PW-2) is corroborated from the evidence of Anun (P'VV-1) son of the deceased, who has iodged the first informatiQn report against the appeliant and deposed that his mother Sukhwati Bail (PvV-2) and neighbours told about the incident and after receiving informatiQn rrom them, he lodged report vide Ex.P/1 & P/2. The above version is aiso corroborated from the contents of the first information report Qf Ex-P/2. Argument of iearned counsei for the appetiant that there are discreDancies in the version of above two witnesses about the reason ror quarrel is aiso of no avaii as the same does not go to the root of the matter ^^^.^"'•B'^^y^Ki^^^^^^^g^^^^g^s^^^^^^^^^^^^^g^,^^^ 6 and on the basis of trlvial discrepancies, entlre version of eyewitness SukhwatiBai (PW-2) cannot be discarded particularly, when her version is corroborated from first information report as weil as from the evidence of doctor, who has conducted postmortem and found corresponding injuries on the head of the deceased. 13. So far as the argument advanced by learned counsei for the appeliant that CQnyiciion of the appeilant under Sectlon 302 ot the.lPC is bad and the offence does not travel beyond Section 304 Part-i or ii or the IPC is concerned, trQm the eyidence of Sukhwati Bai (PVv-2), we find that the appeiiani attacKed the deceased wilhout any provocation and the deceased afier tne first assauit by shovel, fled to save his lire, appeiiant chased him and assauited him by heavy stone after pushing him on ground. From the postmortem report also, we find that the deceased sustained as many as four fatai injuries on his skuit caused by shovel and stone, therefore, we are QT the considered view that the trial Court was whoily justltied in convicting tne appeitant under Section 302 of the IPC. 14. !n the resuit, the appeai being devoid of any substance, deser/es to bs and is accordinaly dismissed. Sd/- : ; R.N. Chandrakar Judge