@ RE HIGH COURT OF CHHATTISGARH AT BILASPUR Coram: HON’BLE MR.T.P.SHARMA & HON’BLE MR.R.N. Chanrakar, JJ. Criminal Apgeal No. 778 of 2006 r na Suesh S/o Soghar, R/o Morathpal Sarpanchpara P.S. Frejarpur, District — Bastaf' (C.G.) Versus State of Chhattisgarh‘Through : P.S. Frejarpur g ~ 7 (CRMINAL APREAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973) Present:- Mf. C.R. Sahu, counsel for the appellant. AQQellan Accused (In Jan) KIN: Resgondent‘ ‘ Mr. Neeraj Mehta, Panel Lawyer for the State. ORAL JUDGMENT (Passed on D2“ August, 201 1) Per T.P.Sharma, J.:- . Challenge in this appeal is to the judgment of conviction & order of sentence dated 21 .092006 passed by the ist Additional Sessions Judge, Bastar at Jagdaipur, in Sessions Trial No.127/2005, whereby & whereunder Iearned lst Additional Sessions Judge after holding appeiiant guilty for commission of offence of culpable homicide of Chandarwati (since deceased) amounting to murder convicted the appellant under Section 302 of the l.P.C. and sentenced him to undergo imprisonment for life and fine of Rs.500/-. . Conviction is impugned on the ground that without there being any iota of evidence, the trial Court has convicted & sentenced the appellant as forementioned and thereby committed illegality. . Asp per case of: prosecution, on 04.012005 at 7.00 pm. deceased Chandarwati was present near her house along with Puran (PW/2) and Phulsingh (PW/3). Appellant came in her house and asked about DIVISION BENCH: d t/ j a Fulobai, mother of Puran (PW/2). Chandarwati along with Puran (PW/2) and Phul Sing (PW/3) came out from their house. Appellant quarreied on account of land dispute then appeiiant caused repeated assauit upon Chandarwati, resulting into instantaneous death of deceased. Puran (PW/2) and Phulslng (PW/3) came from the spot, thereafter they called Kotwar and told aforesaid incident. Puran (PW/2) went to police station within half hour and lodged F.l.R. EXP/5. Merg was intimated vide EXP/6. investigating officer ‘left for scene of occurrence, after summoning the witnesses vide Ex.P/11, inquest over dead body of dec‘efased was prepared. Spot map was prepared vide vide EXP/10. Plain soil»and‘blood stained soil were seized vide Ex.P/1. Dead body was sent for autopsy to Maharani Hospital, Jagdalpur. Dr. V.K. Jha (PW/§) conducted autopsy vide EXP/12 and found following injuries:- lncised wound of 3 1/2" x 1" “/2 x 1" on the anterior surface of neck above the thyroid cartilage, begins just right of midline of neck, coming interiorly extending upto 1 cm below the pinna of left ear on the left side of neck. ii) Trachea, oesophagus, right jugular veins and carotid artier of left side are cut. Clotted blood present. iv) incised wound over left scapular region of the back of 5 V2 “ x 3 V2 “ x1 V2 “ lncise wound in the size 6x1x1 cms on the middle (spine) over right side of back, 24 cm below C7 vertebrae. vi) incise wound in the size of 3"x1"x1 V2 “at posterior aspect of middle third of left upper arm. vii) Left humerus bone was fractured. i) iii) incised wound over left side of chest of 1"x 1/2 " x V2 V) viii) 3’“, 4‘“ and 5‘“ ribs of left side were also fractured. The mode of death was shock and homicidal in nature. 4. During course of investigation, appellant was taken into custody. He made disclosure statement of axe vide EXP/7, same was recovered at his instance vide Ex.P/8. Blood stained clothes of appellant was recovered vide Ex.P/2. Sealed clothes of deceased was seized vide EXP/3. Seized articles were sent for chemical examination vide Ex.P/17 u Presence of human blood over axe was confirmed vide Ex.P/18. . Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (for short the ‘Code'). After completion of investigation, charge sheet was filed before'the Court of Chief Judicial Magistrate, Jagdalpur, who in turn committed the case to the Court of . @ Sessions Judge, Jagdalpur, Ieamed Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellant, prosecution has examined as many as ten witnesses. Statement of the accused/appeiiant was recorded under Section 313 of the Code. where he denied‘the circumstances appearing against him and pleaded innocence and faise implication in the crime in question. ?. After providing opportunity of Hearing to the parties, learned Additional Sessions Judge, convicted & sentenced the appellant as Q aforementioned. 8. Mr. CR. Sahu, counsel for the appellant and Mr. Neeraj Mehta, Panel s Lawyer for the.“State are heard. Perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellant vehemently argued that conviction of appellant is based on evidence of Puran (PW/2) and Phul Singh (PW/3), grandson of deceased Chandarwati. Evidence of aforesaid witnesses do not inspire confidence and trustworthy. They have not seen the incident but only on account of relationship they have falsely implicated the appellant in crime in question. He also argued that evidence adduced on behalf of prosecution is not sufficient for drawing definite conclusion that only appellant has committed the aforesaid offence. He further argued that as per case of prosecution, appellant has caused aforesaid injuries on sudden quarrel without premeditation and on a spur of moment; therefore, the act of appellant does not travel beyond the scope of 304 part ll ofthe l.P.C. 10. On the other hand, learned panel lawyer for the State opposed the petition and submits that appellant has caused as well as eight incised injuries including anterior surface of neck of deceased, aged about 60 years, who was not having any weapon to save herself shows that appellant has caused aforesaid injuries with intent to cause her death. Evidence of Puran (PW/2) and Phul Sing (PW/3) are sufficient for drawing inference that present appellant has caused aforesaid homicidal death of deceased with intent to cause her death. @ 11.ln order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence available on record. 12.ln the present case, homicidal death of Chandarwati as a result of fatal injury found over the vital part of body of the deceased has not been substantially disputed on behalf of the appellant, even otherwise same is also established by the evidence of Dr. V.K. Jha (PW/9) and autopsy report EXP/12 that death of deceased Chandarwati was homicidal in nature. v r 13.As regards complicity of the appellant in crime in question is concerned, convtction of the present appellant is substantially based on evidence of Puran (PW/2)‘ and Phul‘ Singh (PW/3), alleged eye witnesses. As per evidepce of Phul Singh (PW/3), he was taking meal at the time of incident, appellant came and asked about his mother Fulo Bai then his brother Puran (PW/3) shouted that ‘ETeal w FR Stat“ then he came out after leaving the meal and saw the incident that appellant was holding axe and was assaulting his grandmother (deceased Chandarwati), thereafter he came from the spot and told the incident to others, thereafter he along with Kotwar and other persons came to the spot. At that time appellant was not present on the spot. Dead body of deceased ChandanNati was lying on the spot. Version of Puran (PW/2) is corroborated by evidence of Phul Singh (PW/3) but in para 8 of his cross-examination he has admitted that he has not seen the incident. When appellant was quarrelling with his grandmother (deceased Chandarwati), he left the place of incident and came after some time. At that time appellant was not present and dead body of deceased was lying on the spot. Defence has cross-examined these witnesses at length but has not been able to elicit anything in the cross-examination of Phul Singh (PW/3) to discard his testimony specifically corroborated by evidence of Puran (PW/2) to the extent that appellant came to his house where deceased ChandanNati was residing then he quarreled with Chandarwati. He left the place of incident and after some time when he came along with Kotwar he found the dead body of deceased Chandarwati lying on the spot and appellantwas not present. Presence