HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: RESPONDENT: CriminalAooeal No.996 of 2007 Shukuldas Banjare Versus State of Chhattisgarh Post for oronouncement of iudement on 13th Julv, 2009 Sd/- T.P. Sharma Judge ^ 1 HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: (InJail) Criminal Aooeal No.996 of 2007 Shukuldas Banjare, S/o Koandadas, age about 45 years, R/o Cattle Market, Kawardha, Bilaspur Road, P.S. Kawardha, Tah. 85 Distt. Kabirdham (C.G.) NON-APPELLANT: Versus State of Chhattisgarh, Through Police Station Kawardha, Distt. Kabirdham (C.G.) {Criminal appeal under Section 374 (2) ofthe Code of Criminal Procedure, 1973} Present: Mrs. Kiran Jain, counsel for the appellant. Mr. Sushil Dubey, Govt. Advocate for the State/respondent. Sinsle Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Delivered on 13& July, 2009) 1. Challenge in this appeal is the judgment of conviction & order of sentence dated 5-10-2007 passed by the Sessions Judge, Kabirdhani in Sessions Trial No. 13/2007, whereby learned Sessions Judge after holding the accused/appeUant guilty for commission of offence under Section 304 (2) of the I.P.C., sentenced him to undergo R.I. for 7years. 2. Judgment is challenged on the ground that without any iota of evidence and material to prove motive of the appellant, theCourt below has convicted & sentenced the appellant in the aforesaid manner and thereby committed illegality. 3. Case of the prosecution, in brief, is that on 12-6-2006 at about 6.30 a.ni. at Kawardha, the appellant was sitting in front of the house of Chetu where deceased Rama came, the appellant used filthy words on deceased Rama and assaulted with a small betel axe (Tabli) on his head. Rama fell down. He lodged Dehati Nalishi immediately vide Ex.P-12. He was sent for medical examination, he was examined by the doctor and one lacerated ®^ •'tb'..-:^ 1 '-<?'',.'%^ wound of 3 cms. x 1 cm. x 1 cm. was found over his occipital region. His condition was poor. He was shifted to Dr. B.R. Ambedkar Memorial Hospital, Raipur for further treatment and lastly he died on 13-6-2006. Rojnamcha Ex.P-16 was recorded. Finally F.I.R. was lodged vide Ex.P-13. Inquest over the dead body of Rama was prepared vide Ex.P-9. Dead body was sent for autopsy and autopsy was conducted by Dr. S.N. Manjhi vide Ex.P-18. Cause of death was cardio respiratory failure as a result of head injury. Spot map was prepared vide Ex.P-1. Blood stained clothes of deceased Rama were seized vide Ex.P-4. Plain soil, blood stained soil and other clothes were seized from the spot vide Ex.P-5. One bamboo piece (Kawat) was seized from the spot vide Ex.P-6. The accused was taken into custody and he made disclosure statement ofbetel axe & Lungi vide Ex.P-7, the same were recovered at the instance of the appellant vide Ex.P-8. Seized betel axe was examined vide Ex.P-11. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and affcer completion of investigation charge sheet was filed before the Judicial Magistrate First Class, Kabirdham who in turn committed the case to the Court of Sessions. In order to prove the guilt of the appellant, the prosecution has examined as many as 16 witnesses. Statement of the appellant was recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication. 4. After affording opportunity of hearing to the parties, Court below has convicted & sentenced the appellant as aforementioned. 5. I have heard learned counsel for the parties and perused the impugned judgment as also the record of the trial Court. 6. Learned counsel for the appellant argued that the appellant has notcommitted any offence. The prosecution witnesses have not supported the case of the pfosecution. Even according to the case of the prosecution, the appellant has caused single blow when he was provoked by the deceased, therefore, his act does not fall within the ambit of Section 304 Part-I of the I.P.C., at the -^^ ^ il' ^.^^ l 'I i!IN^ S --te most he may be convicted under Section 325 or Section 326 of the I.P.C. for causing grievous hurt by dangerous weapon. The appellant is in custody since 23-9-2006 and has completed two years 10 months injail which is sufficient sentence. 7. On the other hand, learned counsel for the State/respondent supported the judgment and submitted that the appellant has mtentionally caused dangerous injury to the deceased and as a result of such injury the deceased died within 24 hours of the incident. The Court below has rightly convicted & sentenced the appellant. 8. Injury found on the body of the deceased is not disputed by the appellant. On the other hand, injury found on the body ofthe deceased is established by the evidence of Mahesh (PW-1), Dr. Satish Kumar Chandravanshi (PW-9), R.K. Mishra (PW-10), Dr. Shivnarayan Manjhi (PW-12), Cheturam (PW-16), promptly lodged Dehati Nalishi Ex.P-12, medical report Ex.P-10 and autopsy report Ex.P-18. Lacerated wound of 3 cms. x 1 cm. x 1 cm. was found on the body of the deceased over occipital region on his medical examination. Depressed comminuted fracture of occipital bone of4 cms. x 1.5 cms. coupled with other fractures of scalp was found and the deceased died as a result of such injury. 9. In order to establish complicity of the accused in the crime in question, the prosecution has examined Cheturam (PW-16) who has deposed that at the time of incident he was sitting in front of the house of Mahesh along with Mahesh & Sukul, the present appellant, at that time, one old person came there and the appellant assaulted that old person with axe, the old person fell down. That old person was Samdhi of the appellant. Thereafter, the appellant fled away from the spot. He informed the family members of the injured. lO.Mahesh (PW-1) has supported the version of Cheturam. Other witnesses have not supported the case of the prosecution. Defence has cross-examined Mahesh (PW-1) in detail, but defence has not been able to elicit anything in his cross-examination to discredit his testimony. Defence has also cross-examined ":"^^.. ...^1??^ c^^ '.;.'?i*';»?ip" . ^ '^y 36J Cheturam (PW-16) in detail, but it has not been able to elicit anything in his cross-examination also to discredit his testimony. They are villagers and discrepancy, omission and contradiction in their statements are normal and only on the ground of small discrepancies, omissions & contradictions their testimony cannot be discarded. They are natural witnesses present at the time of incident and their evidence is sufficient for drawing inference that the present appellant has caused fatal injury to deceased Rama and as a result of such injury Rama died within 24 hours of the incident. ll.As regards nature of injury and motive/intention of the appellant, learned counsel for the appellant has vehemently argued that the appellant has caused single blow from blunt side of betel axe or axe which shows the intention that the appellant has not caused injury with intent to cause the death ofthe deceased. 12.According to the evidence of Mahesh (PW-1), on the fateful day when he was sitting with Cheturam & the appellant, the appellant was saying "I will beat?? (Maaroon^a Maaroonga), whereupon he asked the appellant whom he will assault. After some time, the deceased came with Kamad whereupon the appellant told that the personcame, he assaulted the deceased with axe and fled away from the spot. This shows the intention of the appellant that he has intentionally assaulted the injured/deceased, though he has caused only one injury but that was fatal to the life of the deceased and as a result of such injury Rama died. iS.After appreciating the evidence available on record, leamed Court below has convicted the appellant ynder Section 304 Part-II of the I,P.C. and sentenced him to undergo R.I. for seven years. Taking into consideration the nature of injury, as also the use of weapon and part played by the appellant, especially the fact that the appellant was waiting for arrival of the deceased and when the deceased came he assaulted him, sentence of seven years imposed upon the appellant is neither excessive nor unjust. •,-^^ y ff Soma 14.For the foregoing reasons, I do not find any scope for interference in the judgment impugned. The appeal is liable to be dismissed and it is hereby dismissed. Sd/- T.P. Sharma Judge