HIGH COURT OF CHHATTISGARH, BILASPUR Kamlesh, S/o Babulal Panika, aged 25 years, R/o Village Narayanpur Saraijhotha, Police Station Manendragarh, District Koriya (C.G.) Versus State of Chhattisgarh through Police Station Manendragarh, District Koriya (C.G.) Criminal Appeal No.235 of 2005 APPELLANT: (In Jan) RESPONDENT: {Criminal appeaiyunder Section 374 (2)'of Cr.P.C.} Present: Mr. Afroj Khan, counsel for the appeilant. Mr. Sandeep Yadav, Deputy Govt. Advocate for the State/respondent. Division Bench: - Hon’ble Mr. T.P. Sharma and Hon’ble Mr. R.L. Jhanwar, JJ ORAL JUDGM (8—2-201 1). T.P. Sharma, J: - ‘ 1. Chalienge in this appeal is to the judgment of conviction & order of, sentence dated 26-11-2004 passed by the Additional Sessions‘Judge, Manendragarh, in Sessions Trial No.251/2004, whereby & whereunder I learned Additional SessionsJudge after holding the appellant guilty for commission of culpable homicide amounting to murder of his wife 'Poonam, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.500I-, in default of payment of fine to'further undergo RI for five months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby . committed illegality. 3. As per case of the prosecution, on the fateful day of 4-5-2004 at about 3 ‘ ' p.m. the appellant & hiswife Poonam (since deceased) were present inside the reom, father—in-Iaw of the appellant namely Shankar (PW-2) was present in same house in front of the room, the appellant assaulted “his wife inside the room by axe and caused foUr repeated injuries l ENT 2 f resulting in her instantaneous death. After hearing the sdund of assauit, Shankar (PW-2) rushed inside the room where he saw injured body of his daughter, the appellant was standing there and was holding axe. Shankar (PW-2) snatched the axe from the, appellant and immediately informed his sister Mankunwar, thereafter,'he went to the police station,“ a v and lodged FIR vide EXP—12. Merg was recorded vide Ex.P-11. The Investigating Officer left for the scene of occurrence and after summoning the witnesses vide EXP-13, prepared inquest over the dead body of the deceased vide EXP-1. Dead body was sent for autopsy to ' Community Health Centre, Manendragarh vide Ex.P-4A. Dr. S.N;. Gupta ' ‘ (PW-8) conducted autopsy vide Ex.P-4 and‘found following injuries: - (1) lncised wound over left side of neck of 14 c.m. x 4 c.m. x 8 c.m. (2) lncised wound over back of neck cf 13 c.m. x 4 c.m. x 8 c.m. (3) lncised wound over right shoulder of 1O c.m. x 4 c.m. 4 c.m.‘ (4) lncised wound over heck of 13 c.m. x. 5.c.m. x 8 c.m. All major parts of neck were found cut. Mode of death was syncope. Blood stained and plain soil were recovered from the spot vide EXP-6. During the course of investigation, the accused/appellantwas taken into ’ custody, he made discloser statement of axe vide EXP—8 and same was recovered at his instance vide EXP-9. Bloodstained clothes of the appellant were recovered vide Ex.P-7. Sealed clothes ofvthe deceased were seized vide EXP-10. Seized articles were sent for chemical ' examination vide Ex.P-17 and presence of blood was confirmed on the _ axe and shirt of the appellant vide Ex.P-19.‘ .‘Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Manendragarh who committed the case to the Court of Sessions, Ambikapur- from where learned Additional Sessions Judge received the case on transfer for trial. . ln order to prove the guilt of the accused, the prosecution has examined as‘many as twelve witnesses. The accused was examined under Section 313 of the 'CrPC in which he denied the circumstances appearing against him, ple‘aded‘innocence and false implication, in the“ . crime in question. The appellant has taken specific defence that at the time of incident Shankar (PW-2), his father-in-law, was assaulting him and he was'saving himself, Shankar was holding axe. at the sa‘me‘ time » , :i r‘ w‘ the deceased came to save him and in course of such saving, she was assauited by Shankar i.e. her father, thereafter he w'as trying to snatch the axe, meanwhile his father came and Shankar fled away’ from the ‘ spot. The appellant has also taken defence that he is man' of abnormal brain and he is undergoing treatment. He has examined defence witness Bharat Lal (DW—1) who has deposed that during the course of custody, the appellant was sent for examination before the doctor. 6. After affording opportunity of hearing to the parties learned Additional Sessions Judge convtcted & sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties perused the Judgment impugned and record of the trial Court v ' ‘ 8'. Learned counsel for the appellant vehemently argued that in the present ' case the prosecution has not proved the fact that the appellant has caused homiCidal death of his Wife, even there was no intention or motive for causing such injuries or homicidal death. Shankar (PW-2) has not seen the incident, inter alia he has caused such injuries to wife of‘the ‘ appellant, the appellant was insane at the time of commissionof the‘ offence and, therefore, he is protected in terms of Section 84 of the IPC rand he is not liable for any punishment. 9. On the other hand, learned State counsel opposed the appeal ‘a'nd submitted that statement of the accused recorded under Section 313 of ‘ the CrPC‘ reveals that he is not insane, he may be of depressed mind. In case of any benefit under Section 84 of the IPC, the appellant 'was'under a obligation to prove exception in terms of Section 105 of the Indian Evidence Act, 1872 (for short ‘the Act’), but theappellant has not proved such exception. The appellant has caused four repeated injuries that foo“ ‘ ‘ ‘ upon neck & shoulder which show that he has intentionally caused such injuries resulting in instantaneous death of the deceased. This also shows grave intention of the appellant of causing murder of his wife. ‘ 10.ln order to appreciate the arguments advanced on behalf of the parties, - we have examined the evidence adduced on behalf of the parties. 11.’ln the present Case, the appellant has. not substantially. disputed homicidal death of deceased Poonam as a result of fatal injuries found ‘\ over vital parts of her body, otherwise also it is established by the / / / / / 4 vidence of Dr. S.N. Gupta (PW-8) and autopsy report Ex.P-4 that’dea'th ' V ' . es of Pdoném is homicidal in nature. 2.As regards comphcrty of the appellant In the crime In question convrctront _ is substantially based on the evrdence of Shankar (PW 2) As per his evrdence on the fateful day the appellant & deceased Poonam were InSIde the room at the tlme of Incrdent he was also present In same house he heard sound of assault on whlch he rushed InSIde the room where he saw that the deceased was lymg on floor and the appellant was standing, the appellant was holding axe he snatched the axe and immediately went to the house of his Sister whom he narrated the "incident then he went to the police station and lodged report ln his cross—examination he has admitted in para 4 that he heard the sound of ‘ falling of bucket but he has not heard the sound of falling of his daughter he has not seen that as to whether any third person has entered in the room or not. He has admitted in para 5 of his cross— examination that behaviour of the appellant was like depressed person and the appellant was under depression Nothing has been asked to this vii l‘ Witness relating to causing injury by him to the appellant or to the deceased Inter alia he has admitted injury found over head of the , appellant and has explained that father of the appellant has caused such injury to the appellant His eVidence is corroborated by the eVIdence of Babu Lal (PW-3) father of the appellant who has admitted in his cross— ,_ ‘ ' examination that behaVIour of his son was like insane 13 EVidence of aforesaid Witnesses are suffICient for drawmg inference that the appellant has caused homICidal death of his Wife Poonam . 14 As regards the question of motive motive only aids in criminality and in ’ case of direct eVIdence it loses its importance Motive can be inferred on I thebaSIs of the weapon used, part of the body effected nature of injury and other similar circumstances 15 ln the present case the Witnesses have admitted that behaViour of the appellant was not normal and he was under depressmn the appellant" * himself has taken defence that he has not caused any injury and father V f the deceased has caused injuries to her ln case of exception under Section 84 of the IPC the accused is reqUIred to prove exception in terms ofSection 105 of the Act. e ' 1 5 » 16.ln the present case, evidence of Shankar (PW-2) clearly reveals that on the fateful day the appeiiant was inside the room with his wife where his wife sustained injuries. Although the appeiiant was under depression, but evidence of Shankar ‘(PW-2) reveals that the appeiiant was not unable to understand good and bad or right and wrong, at the time of commissidn of such offence. The appeiiant has pointedly caused three injuries over neck of the deceased and 4‘“ injury near neck i.e. upon shoulder which shows that he has not acted in reckless manner or he ,r has not caused injuries with intent to cause such injury to the deceased. 17.After appreciating the evidence available on record, learned Additional \ Sessions Judge has convicted & sentenced the appellant. 18.0n close'scrutiny of evidence, we do not find any illegality in finding of _ conviction & sentences imposed upon the appellant by the trial Court; 19.’Consequently, the appeal is devoid of merit 'same is liable to be ‘ \dismissed and it is hereby dismissed. x Judge if *’ .. Soma V. I 3d]. 7 'T-P. sHARMA' g" Ridge ii, Sd/- R.L. Jhanwar l l i" it“ i