HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLEMR. T.P. SHARMA & HON'BLE MR. R. L. JHANWAR, JJ. CR.A. 266/2001 APPLICANT (IN JAIL) RESPONDENT VERSUS KAMLESH S/0 MOHAN LAL DUBEY, AGED 30 YEARS R/0 BARRA PRARA PENDRA, BILASPUR (C.G.) STATE OF CHHATTISGARH. Menao of Appeal under section 374 of the Cpde of Crim.inal Procedure. Present:- Mr. Abhay Tiwari, Advocate for the appellant. Mr. Rakesh Jha, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 21/01/2010) The following iudgment of the Coyrt was passed by T.P. Sharma, J:- 1. Chsdlenge in this appeal is to the judgment of conviction and orde'i- of sentence dated 26/6/99 passed by Additional Sessions Judge, Bilaspur Link Pendraroad in Sessions f • TrialNo. 410/98 whereby and where under after holding the appellant guilty for the offence of homicidal death amounting to murder of Kartikram. Sarthi convicted the appellant under Section 302 of the Indian Penal Code and sentenced imprisonment for life and fine of Rs. 2,000/-|in default of payment additional rigorous unprisoninent for 1 year. Judgment is impugned on the ground that without any iota of evidence Court below has convicted and sentenced the appellant aforeinentioned and thereby com.m.itted an illegality. The brief case of the prosecution is on fateful day' of 1 30/4/98 at Deorikala Police Station Pendraroad appellant along with Cham.pabai wife of the appellant assaiilted fhe Kartikram. Sarthi and caused his death. Champabai 'feo- accused herself lodged the false Marg intiraation that Kartikram fell down from the tree and has died Vide Ex. P- 5. Investigating Officer proceeded for spot and after suininoning the witness Vide Ex. P-6, inquest over the dead body of the Kartikram Sarthi was prepared vide Ex. P-7. Dead body was sent for autopsy to Primary Health Center, Pendraroad vide Ex. P-18. Autopsy was conducted by PW6 R.C. Mishra, vide Ex. P-1 and found following injuries:- (1) contusion of 4 x 2 c.m. over right side of forehead. (2) contusion of 3x 1 over upper lid of left eye. (3) One abrasion of 4 x 5 x 4.5 c.m. upper part of the right side of the abdomen, fracture of 7*h, 8&, 9*h & IQth Rib was also found. (4) abrasion of 4.5 x 3.5 right side of chest. (5) contusion of 6 x 4 e.m. over right forearm. (6) contusion of 4x2 c.m. over upper lip (7) right Uver was found » ruptured. The cause of death was shock as a result of rupture of liver and death was homicidal in nature. 4. Spot map was prepared vide Ex. P-4. Appellant was taken into custody he made a disclosure statement of club vide Ex. P-8, at the instance of appeUant wooden club was recovered vide Ex. P-9. Another co-accused Lalchand also made disclosure statement of club vide Ex. P-10 same was recovered at the instance of co-accused Lalchand Vide Ex. P-11. One stabbing instrument (Carpenter instrument Bindhna} was recovered vide Ex. P-12, 2 human teeth, blood stained beg was recovered from the courtyard vide Ex. P-13. Patwari prepared spot map Vide Ex.P-19 finally First Information Report was lodged vide P-21. Seized article were sent for cheinical examination vide Ex. P-22. 5. Statement of the witnesses were recorded under Section 161 ofthe Code of Criminal Procedure, 1973 (in short 'the Code). After completion of the investigation charge-sheet was filed before the Judicial Magistrate First Class, Pendraroad who in tum committed the case to the Gourt of Sessions, BUaspur. Learned Additional Sessions Judge received the case on transfer. 6. In order to prove the guilt of the accused/appeUant and co-accused persons prosecution examined as well as 13 wibnesses. Accused were examined under Section 313 of ;- the Code where they denied the circumstances appearing I'-^—l.uun n>n .iu-sal .Ali*. ^^kliiaai i M^^^'S!^ • ^.: •SSK^tSf, ij te^- against them, innoGency and false implication is claimed. Present accused has taken the defence that deceased Kartikram Sarthi had consumed the liquor on the date of incident and he feU down frora the tree. 7. After affording an opportunity of hearing to the parties learned Additional Sessions Judge convicted and sentenced the appellant and co-accused persons aforementioned. 8. Leamed counsel for the parties are heard. Judgment impugned and record of court below perused. 9. Leamed counsel for the appellant vehemently argued that prosecution has utterly failed to collect the evidence to connect the appeUant in crime in question. The evidence of witnesses is not sufficient for drawing an inference that appellant has committed the aforesaid crime. 10. On the other hand, learned counsel for the respondent/State opposed the appeal and submits that the evidence adduced on behalf of the prosecution is sufficient for drawing an inference that appellant is a person who has caused homicidal death of the Kartikram Sarthi and case is based on extra judicial confession made by the appellant to the PW2 Sadhna, PW3 Sukhiram, PW4 Nandlal Sarthi, PW5 Vinod. 11. In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of the prosecution. 12. In the present case homicidal death as a resi-dt of rupture of liver of the deceased Kartikram Sarthi has not been substantially disputed by the appellant otherwise also established by the evidence of PW6 R.C.Mishra and autopsy report Ex. P-1 which reveal that fatal injury over the head and abdoinen including fracture was found over the dead body and death was homicidal in nature. 13. PW2 Sadhna daughter of the deceased a child witness of 12 years has deposed in his evidence that while she was coming back after selling the flowers appellant met her &t village Kotmi she asked the accused that he is coming from which place then appellant told her that he quarreled with her father and also give threat that if she will told these thing then he will commit her murder. Appellant has also told her that he alongwith Champabai has killed her father. 14. She came to her house where the injured body of her father was lying in courtyard. She asked to her father, that who Has assaulted him then her father Kartikram Sarthi told that present appellant and Champabai had assaulted him, but Champabai told that her father fell down from the tree. She has also deposed in her evidence ~!! hl ^ that she was under threat therefore she has not narrated the incident to other. PW3 SuKhiram. has deposed that'at about 11 to 12 at noon he was present in his house his son Nandram and daughter-in-law Chandabai were constructing the wgdl at that time appellant came and denaand water after drinking the water appellant told him that he has killed the Kartikram Sarthi by stick and inflected injury over his head. PW4 Nandlal son of PW3 Sukhiram and PW5 Vinod have also deposed in his evidence that appellant made extra judicial confession that he has killed the deceased. 15. Defence has cross examined PW2 Sadhna at length in which she has admitted in Para-6 that her father, was in habit of drinking Uquor and also used to assault her and her mother. On the date of incident her father had consumed the Uquor in excessive quantity. PW2 Sadhiia has not stated anything in her cross examination to show that appellant has not made extra judicial confession and deceased has not made dying declaration to her. Defence has also cross examined PW3 Sukhiram, PW4 Nandlal and PW5 Vinod in detail but has not asked anything to show that appellant has not made extra judicial confession to him. 16. The extra judicial confession is a week type evidence but once it is proved to be true then same may besufficient for s 8 . •^SS aaaawana.t sfiltaia^iS.aiilis^iW ^ drawing positive inference. The evidence of PW2 Sadhna reveal that deceased has also made dying declaration to her. Present case is not based on direct evidence but the evidence of extra judicial confession and dying declaration inspire confidence trustworthy. The evidence of dying declaration and extra judicial confession made by the accused is sufficient for drawing an inference that appellant has caused injury to the deceased and the deceased died as a result of such injuiy. Evidence of PW3 Sadhna also reveals that when she cam.e back to her house after selUng the flowers from Kotmi her father was alive. The evidence adduced on behalf of the prosecution reveal that relative of the deceased had not tried to save the deceased or no treatment was given to him. The injury found over the body was grievous in nature and the fatal injury was ruptured the liver. At the time of incident deceased was alone and was not holding any weapon. He was in drunken condition appellant was also in drunken condition (as stated by PW3 Sukhiram in Para-4). AppeUant has assaulted the deceased and left him alive who subsequently died, after considerable time, shows that appellant has not caused any injury with intent to cause his death but has caused injury having knowledge that as a result of such injury deceased may die. ,1: i,.,i, % 17. The evidence adduced on behalf of the prosecution is not suf&cient for drawing an inference that appeUant has committed homicidal death of the deceased amounting to murder and the act of the appellant does not traveled beyond under Section 304 Part-II of the Indian Penal Code. 18. After appreciating the evidence available on record learned Additional Sessions Judge has convicted and sentenced the appellant aforementioned but has not considered the fact that deceased was in helpless condition, appellant was holding stick but has not caused instantaneously death by.inflecting fatal or sever injury thereby committed illegality. 19. For the foregoing reason the conviction of the appellant under Section 302 of the Indian Penal Code is not sustainable. Appeal is partly allowed. Judgment impugned is modiGed. The conviction of the appellant Kamlesh under Section 302 of the Indian Penal Code is altered into under Section 304 Part-II of the Indian Penal Code. As regard the question of sentence is concemed appellant was in custody since 3/5/98 till 26/4/05 and thereby he was in custody for about 6 years, 11 months and 23 days. Considering the facts custodial period already undergone would be sufficient sentence ^ to the appellant. • ; Consequently, appellant is sentenced to rigoroUs •&\ ^k! ",l^t» ',t .'•'•' -^' ^ s< w SP o- »"-•&• TO » r m <^ p- n> 1§ v I-6 1np (T> § ^ &£ v 1 p. \v II i &1; U3 n> ^ &") CO g.»'£ fl> v 1 .1 •^