l^ f^o^-1 & HIGH COURT OF CHHATTISGARH AT BILASPUR Coram : Hon'ble^Shri T.P.Sharma and Hon'ble Shri Raieshwar Lal Jhanwar, JJ. Appellant Accysed (in jail) Criminal ABeeaLNo. 347 of 2004 Mahendra Kumar, S/o Nand Kumar Verma, aged below 19 (Nineteen) years, resident of village Birgaw, near Electricity Office, Uria, Raipur, District Raipur (C.G.) Versus Respondent : The State of Chhattisgarh CRIWIINAL APPEAL U/S 374 OF CODE OF CRIMINAL PROCEDURE Present : Shri Janak Ram Verma with Shri Santosh Sahu, counsel for the appellant. Shri Sandeep Yadav, Dy. Government Advocate for the Sate/respondent. ORAL JUDGMENT (Passed on 19'" February, 2010) The following oral Judgment of the Court was passed by T.P.Sharma, J. Challenge in this appeal is to the judgment of conviction and order of sentence dated 19th February, 2004 passed by the 9th Additional Sessions Judge (F.T.C.), Raipur in Sessions Case No. 273/2002 whereby and whereunder after holding the appellant guilty for culpable homicide amounting to murder of Madanlal and for attempting to commit murder of Dehuti Bai P.W.1, the Court below convicted the appellant under Section 302 and 307 of the I.P.C. and sentenced him to life imprisonment and to pay a fine of Rs.500/- under Section 302 of the I.P.C. and to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.500/- under Section 307 of the I.P.C, in default of payment of fine, to -undergo additional imprisonment for six months in each count. 2. The conviction is impugned on the ground that without iota of evidence, the Court below convicted and sentenced the appellant as aforesaid and thereby committed illegality. 3. Brief facts of the prosecution is that on fateful day i.e. 03.06.2002 the appellant, who is the grandson of the deceased Madan and injured Dehuti Bai, husband and wife, came to the house of the deceased and H!s-fy ^ ^! "^'"'..^' •';i:'":-;^"-^"'' ^iSI^ stayed there and while after taking rest woke up and assaulted Madan repeatedly and caused fatal injuries. When P.W.1 Dehuti Bai tried to intervene, then accused also assaulted her by knife over her abdomen, due to which intestine come out of the omentam. The appellant again caused repeated injury over her chest and elbow joint and thereafter fled from the spot. P.W.1 Dehuti Bai shouted and upon her shouts the accused was caught hold by some persons. Incident was reported vide Ex.P.21 by one Khomram Verma. Both injured was shifted to hospital for treatment. Vide Ex.P.12, Madanlal was examined.by Dr. Smt. Kiran Agrawal P.W.15, who found the following injuries over the person of Madanlal: i) One stab injury over right iliac rigor. Omentom intestine proluted out. ii) Incised wound over right mid auxiliary line of chest about 4 x 2 cm. and bteeding. Dr. Smt. Kiran Agrawal P.W.15 opined that patient was shock and the above injuries could be caused by hard and sharp object and referred Madanlal to Surgery Department. She has also examined P.W.1 Dehuti Bai vide Ex.P.11 and found the following injuries: i) One incised wound over right side of chest measuring 3x1 cm. ii) tncised wound of 1cm x 0.5 cm. over right forearm. iii) Incised wound of 1cm x 0.5 cm. over right arm. iv) Incised wound of 0.6 x 0.2 cm. over right elbow joint Regarding above injuries, Dr. Smt. Kiran Agrawal further opined that they could be caused by hard and sharp object. She has also referred Dehuti Bai to Surgery Department. 4. During course of treatment, Madanlal succumbed to the injuries sustained by him. Death was intimated to the police vide Ex.P.10 (merg intimation). After summoning the witnesses vide Ex.P.1, inquest over the dead body of Madanlal was prepared and dead body was sent to Medical College Hospital, Raipur vide Ex.P.4 where autopsy was conducted by Dr. G.P.Dewangan P.W.12 vide Ex.P.5. Upon examination, the following injuries were found: 'ai;"";,;" i) One stab wound of 2.5 cm. x 1 cm x deep upto piercing right side of liver upto right kidney fully. ii) One stab injury of 3.5 cm x 1.5 cm. x deep upto abdominal cavity (omentam coming out from the wound). Rigor mortis developed. iii) Surgical wound stitehed over right elbow joint. iv) Stab wound / penetrated wound over right lever and right kidney. Mode of death was shock. Patwari prepared the spot map vide Ex.P.3. Bloodstained and plain soil were recovered vide Ex.P.7. Canvas shoe left by the accused on the spot was seized vide Ex.P.8. During the course of investigation, the accused made disclosure statement of knife vide Ex.P.9 in which the appellant disclosed that he kept the knife at the house of Sonram Chandrawanshi. The same was recovered vide Ex.P.6. Merg intimation was also recorded vide Ex.P.19. Seized articleswere sent for chemical examination and presence of blood over the knife was confirmed vide Ex.P.23. 5. Statements of witnesses under Section 161 of the Code of Criminal Procedure (for short 'the Code') were recorded. After completion of investigation charge sheet was filed before the J.M.F.C. Raipur, who in turn committed the case to the Court of Sessions, Raipur. The learned Additional Sessions Judge received the case on transfer for its trial. 6. In order to prove the guilt of the accused, the prosecution examined as many as 23 witnesses. Accused was examined under Section 313 of the Code in which he denied all the cireumstances appearing against him. Innocence and false implication was claimed. After affording opportifnity of hearing to the respective parties, the learned Additional Sessions Judge convicted and sentenced the appellant as aforesaid. 7. Shri Janak Ram Verma, learned counsel for the appellant and Shri Sandeep Yadav, Deputy Government Advocate are heard at length. Perused the judgment impugned and records of the Courts below. 8. Learned counsel for the appellants vehemently argued in this case that independent witnesses had not supported the memorandum of '^-. :^;^;' ^, "^ n /-* recovery of weapon ofoffence; therefore, there is no evidence to establish the recovery of weapon of offence at the instance of the appellant. The evidence of P.W.1 Dehuti Bai is not safe to rely. Counsel further argued that in the present case, according to the case of the prosecution, the appellant was sleeping and taking rest in the house of the deceased and all of sudden the incident took place which shows that the appellant has not caused any injury with intent to cause death of Madanlal and with intent to commit the murder of Dehuti Bai. Therefore, if the evidence adduced on behalf of the prosecution is admitted at its face value, then even the same is not sufficient for drawing an inference that the appellant has caused murder of Madanlal and the act of the appellant would fall under Section 304 Part II of the I.P.C. and not under Section 302 of the I.P.C. 9. Learned counsel for the appellant has placed reliance in the matter of Salim Sahab v. State of M.P. in which the Apex Court has held that during quarrel between deceased and accused, while they were grappling, accused assaulted deceased on his abdomen and chest with a pair of scissors which was not a big-sized weapon and not small, then the accused would not be liable to be convicted under Section 302 of the I.P.C. and would be liable to be convicted under Section 304 Part II of the I.P.C. and 7 years rigorous imprisonment would be sufficient. He also placed reliance in the matter of Gopal and others v. State of U.P wherein the Apex Court has held that in the absence of motive on the ground of two injuries over the chest, the conviction of the appellants under Section 304 Part II of the I.P.C. is proper. Learned counsel further placed reliance in the matter of Subhash v. State of Haryana in which the Supreme Court has held that in the absence of intention to cause death, the conviction is proper under Section 304 Part II and 7 years R.l. would be sufficient. 10. On the other hand, learned counsel for the State/respondent opposed the appeal and submitted that the appellant was having grudge against the deceased and injured witness i.e. Dehuti Bai P.W.1 intentionally went to the house of the deceased stayed there for some time ' (2007) 1 SCC 699 2 (2002) 9 SCC 744 3 (2007) 12 SCC 63 llT'iim'^'wTTnpiin'T^T and after taking an opportunity he committed the murder of Madanlal and caused fatal injuries to Dehuti Bai P.W.1 whichclearly shows the intention of the appellant to cause death of Madanlal and attempted to commit murder of Dehuti Bai P.W.1. 11. In order to appreciate the arguments advanced on behalf of the parties, we have minutely and thoroughly examined the evidence available on record. In the present case, the homicidal death as a result of fatal injuries over the person of Madanlal and fatal injuries caused to Dehuti Bai P.W.1 has not been substantially disputed by the appellant, on the other hand has also been established from the evidence of P.W.15 Dr.Smt. KiranAgrawal, her medical reports Ex.P.11 and Ex.P.12, evidence of Dr. G.P.Dewangan P.W.12 and autopsy report Ex.P.5 which revealed that fatal injuries found over the body of Madanlal including stab wounds over right liver and right kidney are sufficient in the ordinary course of nature to cause death of Madanlal and fatal injuries caused over the person of Dehuti Bai P.W.1 are sufficient for drawing an inference that the appellant having grudge against both of the victims intentionally inflicted the injuries. 12. As regards complicity of the appellant in crime in question, P.W.1 Dehuti Bai, injured witness, has categorically deposed that the appellant came to her house and stayed there. They provided a bed for him for his rest and while he was taking rest along with the deceased, all of sudden she heard shouts of her husband that the appellant is not his guest and has come to murder him, whereupon she went there and saw that appellant was assaulting her husband and when she tried to intervene he also assaulted her repeatedly and caused injuries. Thiswitness shouted for help and villagers nearby gathered and at that time when the accused was trying to run away they caught hold of him. Ultimately, the deceased was sent for medical treatment to Hospital where during the course of treatment Madanlal died offatal injuries sustained by him. P.W.2 Suresh Kumar has deposed in his evidence that he is not the relative of the victims but upon hearing shouts of Dehuti Bai he chased the appellant, who was running away, and caught hold of him with the help of other villagers. ifc-- •rhi »»! 13. The defence has cross-examined the P.W.1 Dehuti Bai at length. In paragraph 5 and 7 of her cross-examination, she has specifically deposed that the appellant is son of her brother-in-law namely Nandkumar and she is his relative. In paragraph 7 she has specifically admitted that the appellant was having grudge against her husband and previously Malikram, son of her brother-in-law, has also assaulted her husband and over this witness. The very fact that the appellant was running from the house of the injured was cot hold by the persons is not disputed. The defence has also cross-examined at length but has n.ot been able to elicit anything in her evidence to discredit her testimony to the effect that the appellant has not caused any fatal injuries to her and her husband. 14. As regards motive of the appellant, the Supreme Court has held in Gopal and others v. State of U.P. and Subhash v. State of Haryana (supra 2 and 3) relied on by the learned counsel for the appellant, that in the absence of motive on the ground of two injuries over the chest, the conviction of the appellant under Section 302 I.P.C. would not be sustainable. But in the present case, the appellant, who was having grudge against the deceased and the injured firstly came to their house being relativeand stayed there and thereafter after taking advantage that the deceased was sleeping he assaulted him and caused fatal injury. When P.W.1 Dehuti Bai after hearing shouts of her husband tried to intervene between them, the appellant also assaulted her and caused fatal injuries over her, which shows the grave intention of the appellant to cause murder and fatal injuries on account of previous enmity. The case law cited by the learned counsel is fully distinguishable on the grounds and facts to the present case. 15. Having scrutinizing the evidence ofthe prosecution, it can safely be inferred that the appellant taking into consideration the previous enmity and with intent to cause death has caused the culpable homicide amounting to murder of Madanlal by inflicting fatal injuries and also with intent to kill Dehubit Bai, attempted to commit murder of Dehuti Bai and we are of the view that the act of the appellant would never fall under Section 304 Part II of the I.P.C. The learned trial Court has rightly convicted the appellant and awarded sentence after appreciating the evidence adduced on behalfofthe prosecution. ,.1r--'s 's^ll^. ^ 16. On close scrutiny of the evidence adduced on behalf of the prosecution, we do not find any infirmity or illegality in the impugned judgment warranting our interference. Consequently, the appeal is liable to be dismissed being devoid of merit. 17. In the result, the appeal is hereby dismissed. Conviction of the appellant under Section 307 and 302 of the I.P.C. and the sentence awarded fhereunder are affirmed. — — — _ _ Sd/- T.P. Sharma Judge Sd/- R.L. Jhanwar Judge ^Jr/M ^^ J