HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE MR. T.P. SHARMA & HON’BL-E MR. RANGNATH CHANDRAKAR JJ. CRIMINAL APPEAL N0.65 OF 2006 MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374R! OF CRIMINAL PROCEDURE CODE. Presentz- Mr. Vipin Tiwari, Advocate for the appellants. Mr. Neeraj Mehta, PtL. for the State/respondent. JUDGEMENT (Passed on 02/09I20 1 1) The following judgnent of the Court was passed by T.P. Sharma, J:- Challenge in this appeal is to the judgnent of conviction and order of sentence dated 29/12/2005 passed by Sessions Judge, Durg District Durg (C.G.) in Sessions Trial No. 43/2005 whereby and where under after holding the appellants guilty for the commission of offence of culpable homicide amounting to murder of Ramprasad in sharing common intention and convicted ‘ APPELLNATS 1. Ajay Thakur S/o Narad Thakur, IN JAI agéd about 20 years, Resident of Modelfl‘own, P‘S’ Supela District Durg=(CG), \ 2. v Rakesh Nag S/o Puna Ram Nag, aged about 20 years, resident of Steel Colony, Nehru Nagar, RS. Supela, District Durg (CG). RESPONDENT Th6 State of Chhattisgarh through the District Magistrate Durg (CG). appellant Ajay Thakur under Section 302/34 of Indian Penal Code and sentenced imprisonment for life and flne of Rs. 500/-, Court below has also convicted appellant Rakesh Nag under Sections 302/34 8a 323 of the Indian Penal Code for causing simple hurt to Suraj and sentenced imprisonment for life and fine of Rs. 500/— and imprisonment for 2 months in default of a s- payment _ of fine amount additional rigorous imprisonment for 1 month to each accused/appellant. Conviction is impugned on the ground that without any iota of evidence sufficient for conviction of appellants Court below has convicted and sentenced the appellants as aforementioned and thereby committed an illegality. As per case of the prosecution, on fateful day of 25/ 12/2004 at about 8:40 AM. PW4 Suraj along with his father Ramprasad (since deceased) were present in their small shop (Them), present appellants demanded breakfast and after taking breakfast when PW4 Suraj and his father Ramprasad asked for payment then they abused appellant Ajay Thakur took out the knife and caused single blow upon the abdomen of Ramprasad and appellant Rakesh Nag after holding PW4 Suraj assaulted him thereafter both the appellants fled from l l the spot. PW4 Suraj 81, Ramprasad went to the Police ;v b 03> Station and informed the Police Vide Ex. P—6 thereafter they went to the hospital. PW4 Suraj exammed by PW2 Dr. V.S. Baghel vide Ex. P-3 who was complaining pain in his abdomen & chest. PW12 Dr. RK. Damle examined Ramprasad vide Ex. P—26 and found incised wound of 2 x 1 X 1 c.m. near navel Doctor admitted him in hospital then he left hospital and again he came "<+ ‘$ back to hospital Who has examined by Doctor vide Ex. P—gS. On '2?/ 12/2004 Ramprasad admitted in Sector—9 hospital, Bhilaj where PW13 Dr. J.C. Maharwal examined him vide Ex. 13-29 and opined that Ramprasad’s position was serious he was admitted in ICU, his injury was explored, stab wound was found on small intestine, left kidney & large intestine and blood & liquid found inside the abdomen cavity. Ramprasad died as a result of injury. Marg intimation was recorded vide Ex. P—7. After summoning the witnesses vide Ex. P- 8, inquest over the dead body of Ramprasad was prepared vide EX. P—9. Spot map was prepared vide Ex. P— 10. PW8 Dr. J.Pl Meshram conducted autopsy vide Ex. P—14 and found aforesaid injuries mentioned in Ex. P‘29. Mode of death was shock as a result of injury and its complication. During course of treatment, dying declaration of Ramprasad was recorded by PWll T.S. Rajput, Assistant Sub-Inspector vide Ex. P— 18. Statements of the witnesses were recorded under Section 16 1 of the Code 0f Criminal Procedure, 1973 (in short ‘the Code’). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Durg who in turn committed the case to the Court of Sessions: Durg. In order to prove the guilt of the appellants prosecution examined as many as 14 witnesses. Accused persons/appellants were examined under Section 313 $ ‘ 5" 3 of the Code where they denied the circumstances appearing against them and pleaded innocence and false implication in the crime in question. After affording an opportunity of hearing to the parties, learned Sessions Judge, Durg District Durg (C.G.) has convicted and sentenced the appellants as aforementioned. Mr. Vipin Tiwari, learned counsel for the appellants and Mr. Neeraj Mehta, P.L. for the State/respondent are heard. Judgment impugned and record of the Court below perused. Learned counsel for the appellants vehemently argued that evidence of solitary, injured, interested 8r, relative witness PW4 Suraj does not inspire confidence and trustworthy. As per evidence of PW4 Suraj & evidence of doctors, injury found over the body of Ramprasad was simple in nature. Ramprasad died as a result of not getting proper Heatment but not as a result of injury that too after 14 days of incident and no injury over body of Suraj has been noticed by doctor. Prosecution has not proved the fact that both the appellants have committed'offence in sharing common intention. As per evidence of PW4 Suraj, incident took as ‘Q; place all of a sudden on spur of moment and only single bloW' has been caused therefore, if the case of the prosecution is admitted in its face value then even act attributed to appellants does not traveled beyond the scope of under Section 304 Part-ll of the Indian Penal Code. Present appellants are in custody since 2004. 9. On the other hand: learned Panel Lawyer for the A respondent/ State opposed the appeal and argued that evidence of PW4 Suraj is well corroborated by promptly lodged Dehati Nalishi Ex. P~6, dying declaration of Ramprasad recorded by PW11 T.S. Rajput, Assistant Sub—Inspector Vide Ex. P— 18 and factum of oral dying declaration of Ramprasad is also supported by evidence of PW5 Smt. Satyabhama, Wife of deceased Ramprasad are sufficient for drawing definite conclusion that both the appellants have caused homicidal death with intent to cause death of Ramprasad in sharing common intention. w a t WWW w no ii I i . In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. In the present case, homicidal death as a result of fatal injury found over the body of deceased Ramprasad has not been substantially disputed on behalf of the appellants on the other hand, otherwise also established by the evidence of PW12 Dr. R.K. Damle its maiical report EXS. P—26, P—27 85 P—28, PW13 Dr. J.C‘ Maharwal ité medical report Ex. 13-29, Pwz Dr. vs. Baghel its report Ex. P—4 and PW8 Dr. J.P. Meshram its autopsy report Ex. P—4 and death of Ramprasad was homicidal in nature. As per evidence of PW4 Suraj & PW2 Dr. V.S. Baghel and medical report Ex. P—3, PW4 Suraj has also received simple injury. As regards the complicity of appellants in crime in' question, conviction of the appellants is substantially based on the evidence of PW4 Suraj, injured eyewitness 85 PW5 Smt. Satyabhama, wife of deceased Ramprasad whom Ramprasad has made oral dying declaration and PWll T.S. Rajput, Assistant Sub-Inspector before whom Ramprasad has made dying declaration Ex. P— 18. As per evidence of PW4 Suraj, son of deceased Ramprasad, he along with his father Ramprasad were present in their small shop (Them), appellants ‘i‘w i(t demanded breakfast and after taking breakfast being asked for payment they threatened them then appellant Ajay Thakur'took out the knife and caused injury over abdomen of Ramprasad and other appellant Rakesh Nag caught hold this Witness and caused injury to him then he lodged Dehati Nalishi Ex. P—6. As per evidence of PW5 Smt. Satyabhama, Wife of deceased Ramprasad, he} husband Ramprasad was assaulted by accused ; a M per§ons by‘lmife. As per evidence of PWI 1 ’I‘.S. Rajput, i ‘ Assistant Sub—Inspector, he has recorded dying declaration of Ramprasad Ex. P— 18 and his statement under Section 161 of the Code as vide Ex? ‘P- 19‘ Both the documents reveal that he has made dying declaration that both the appellants abused and appellant Ajay Thakur by using words that he will kill t today took out the knife and caused injury over his ‘l abdomen. Defence has cross—examined these witnesses at length but have not been able to elicit anything in their cross— examination to discredit their testimony specially relating to fact that appellant Ajay Thakur has not caused injury to Ramprasad and Ramprasad has not made dying declaration before aforesaid Witnesses. PW4 l Suraj speciflcally admitted in his evidence that they were knowing the appellants previously but there was no pr€vious dispute with them. Evidence of PW13 Dr. J.C. Maharwal and its report Ex. P—29 reveal that injury found over abdomen was having considerable depth small intestine, large intestine 8s left kidney are affected by single blow and stab wound was found over aforesaid internal organs shows that injury found over the body of Ramprasad was not superficial and full force has been used at the time of causing such injury. Afogesaid “evidence are sufficient for drawing an inference th‘at appellant Ajay ’l‘hakur has caused homicidal death of Ramprasad and appellant Rakesh Nag has caused simple injury to Suraj. As regard the question of intention is ' concerned, intention can be gathered on the basis of nature of injury, use of force, weapon used, part of the body affected and other like circumstances. In the present case, there was no previous dispute, Ramprasad was small shopkeeper, appellants demanded breakfast and after taking breakfast being asked for payment, they have caused injury to Ramprasad and his son Suraj. Ramprasad and his son Suraj were entitled for payment of breakfast taken by appellants but instead of payment, appellants have caused aforesaid injury. Evidence of PW13 Dr. J.C. Maharwal and Ex. P—29 reveal that full force has been ?'\/ ixi‘ 14. used by appellant Ajay Thakur at the time of assaulting by knife and three internal organs has been damaged which was the cause of death of Ramprasad. Virtually, there was no propriety for causing such fatal injury therefore, it can be easily inferred that appellant Ajay Thakur has caused homicidal death of Ramprasad with intent to cause his death. as? As regard _the commission of murder in sharing comxmon intention and meeting of mind is concerned, a . . as per evidence of prosecution, both the appellants demanded breakfast and after taking breakfast when deceased Ramprasad and his son Suraj asked for payment then they have caused injmy to them. As per - 5:7 dying declaration and evidence of PW4 Suraj, appellant Ajay Thakur took out the knife and caused injury to Ramprasad and appellant Rakesh Nag has caused injury to PW4 Suraj. This clearly shows that when payment was demanded then they have caused injury. This is not a case in which both the appellants have decided to cause injury to Ramprasad and to kill him but at the time of demanding payment, appellant Ajay Thakur has caused such fatal injury to Ramprasad and appellant Rakesh Nag caused simple injury to PW4 Suraj. In absence of any connecting evidence it could ‘be dihicult to hold that both the appellants have \ f») y @ cauSed injury to two persons in sharing common intention but evidence clearly shows that appellant Ajay Thakur has caused homicidal death of Ramprasad with intent to cause his death and appellant Rakesh Nag caused simple injuly to PW4 Suraj Without any propriety. Aforesaid evidence is sufficient for conviction and sentence of appellant Ajay Thakur under Section ‘4‘. .s 302 of~ the Indian Penal Code and conviction and sengence of appellant Rakesh Nag under Section 323 of the Indian Penal Code vice-versa the conviction and sentence of the appellants in sharing common intention is not based on credible and clinching evidence. 17. While convicting and sentencing the appellant Ajay Thakur under Section 302/34 of the Indian Penal Code 85 appellant Rakesh Nag under Sections 302/34 & 323 of the Indian Penal Code, Court below has committed meganty. Consequently, criminal appeal is partly allowed. Instead of conviction of appellant Ajay Thakur under Section 302/34 of the Indian Penal Code he is convicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and nne of Rs. 500/- in fault of payment of fine amount additional rigorous imprisonment for 1 month. Conviction and sentence of appellant Rakesh Nag under Section 302/34 of the Indian Penal Code is hereby set-aside. His conviction and sentence under Section 323 of the Indian Penal Code is hereby maintained. Appellant Rakesh Nag is served the sentence imposed upon him. 1“\ sd/. i \ f _ x§1 sw— / T.p. SHARMA I ’R.N. Chandfakar Judge m