^Jo^ ' -,.01 HIGH COURT OF CHHATTISGARH AT BILASPUR \. DTVISION BENCH CORAM: HON'BLEfaR. T.P. SHARMA & HON'BLE MR. R. L. JHANWAR, JJ. Ui '; r'Ei APPELLANT (IN JAIL) RESPONDENT CMMINAL APPEAL 781/2003 Sukul S/o Daduva aged about 50 •ye^t-s R/o village Ratanpur Jalam.bhary Tikara, Police Station Kapu Dtstrict Raigarh (C.G.) VERSUS State of Chhattisgarh through Police Station Kapu District Raigarh (C.G.) CRIMINAL APPEAL UNDER SECTION 374 OF CR.P.C. 1973. Presenfc- Mr. R.K. Sharma, Advocate for the appellant. Mr. Rakesh Kumar Jha, Dy. G.A. for the State/respondent. ORAL-JUDGEMENT (Passedon 25/01/2010) The following iudgment of fhe Coyrt was passed by T.P. Sharma, J:- 1. Challenge in this appeal is to the judgment of convection and order of sentence dated 27/02/2003 passed by 3rd Additional Sessions Judge (F.T.C.), Raigarh in Sessions Trial No. 14/03 whereby and where under after holding the appellant guilty for the commission of culpable homicide amounting to murder of deceased Kharsai convicted the appellant under ^. ijlNiSl yfe!!_: ,<"' // ii' 'gi;aS5», 1 sff»B^?; '%.. "f"^^ '• '•i'FSSS^ -^l Mm\- i.JI 2. Section 302 of the Indian Penal Code and sentenced \, imprisonment for life. The judgment is im-pugned on the ground that wlthout iota of evidence . Court below has convicted and sentenced the appellant aforementioned and thereby committed an illegality/. 3. Case of the prosecution in. brief is that on fateful day of 19/11/02 at about 8 p.m. at Ratanpur Jalangary Tikarapara Distriet Raigarh PW1 Guddu Urav and deceased Kharsay were going towards the house of Kharsai, after taking their meal in the house of PW1 Guddu Urav the appellant came with axe and assaulted Kharsay over his temporal region, another accused son of appellant Sukul namely Giddu also assaulted Kharsay by stick as a result of head injury caused by the appellant by axe Kharsai fell down and died on the spot immediately First Information Report was lodged and Marg was recorded. Investigating Officer left for scene of occurrence, after summoning the witnesses vide Ex. P-1, inquest over the dead body of the Kharsai was prepared vide Ex. P-2. Spot map was prepared vide Ex. P-3. Dead body was sent for autopsy to Primary Health Center, Dharamjaigarh, autopsy was conducted'by PW5 Dr. A.S. Thakur vide Ex. P-8 and found following injuries (1) one wound over the scalp of 'v- ^s^. ^^^^^- ^.^^^^i^a.' miv% 1 "•:,.<'" rf" ^ J 17 x 6 c.m. (2)- F^-acture of left parietal occipital bone, brain matter came out from the injury, cause of death was coma as a result of head injury, death was homicidal in nature". Appellant was taken in to custody he made disclo.sure statement of the axe vide Ex. P-4. Axe was recovered, froAi the appellant vide Ex. P-5. Cloths of the appellant Was recovered vide Ex. P-6. Blood sfaine^ and plain soil were recovered vide Ex. P- 7. Statement of the witnesses were recorded under Section 161 ofthe Code ofCriminal Procedure, 1973 (in short the Code'). After completion of the investigation charge sheet was filed before the Judicial Magistrate First Class, Dharamjaigarh who in turn committed the case to the Court of Sessions, Raigarh. Learned Additional Sessions Judge has received the case on transfer for trial. In order to prove the guilt of the appellant/accused prosecution examined as well as 5 witnesses.Accused was examined under Section 313 of the Code where he denied fhe circumstances appearing against him, innocency and false implication is claimed. After affording an opportunity of hearing to the parties learned Additional Sessions Judge convicted and sentenced the appellant aforementioned. 'll: i ••"^S'SSE''"' "-"''" 1 ^% .--' 7. Learned counsel for the parties are heard. Judgment ^, impugned and record of Court below perused. 8. Learned counsel for the appellant vehemently argued that the evidence.of PW1 Guddu Urav, PW2 Nanhiram, PW3 Hiraram, PW4 Puniram does not inspire confidence. Prosecutic>n has not proved the motive for commission of the offenoe and in absence of motive for causing any offence the conviction of the appellant under Section 302 of the I.P.C. is not sustainable under the law. 9. On the other hand, learned counsel for the State/respondent opposed the appeal and submits that evidence of witnesses exainined on behalf of the prosecution are sufficient for drawing the inference that appellant has intentionally caused culpable homicide amounting to murder of the deceased and Court below has rightly convicted and sentenced the appellant aforementioned. 10. 11, Y In order to appreciate the argument advanced on behalf of the parties we have examined the evidence adduced on behalf of fhe prosecution. In the present case homicidal death as a result of ante- mortem fatal injury of the deceased Kharsai has not been substantially disputed by the appeUant ofherwlse also established by the evidence 'of PW5 Dr. A.S. -i^-ai,. ~^ rL ' ^' y e "W£SSffi .^ Thakur and autopsy report Ex. P-8 which reveal that fatal injury was found over the head comprising the fracture of parietal-and occipital bone and death was homicidal in natura. • 12. As regard the complicity of the appellant in crime in question is concerned tjtie conviction is based on direct .'•'• evidence of eye witnesses PW1 Guddu Urav, PW4 Puniram. PW1 Guddu Urav has deposed in his evidence that the deceased Kharsai took meal with him in his house after taking the meal deceased was going to his house and he was accorapanying the deceased. At midway appellant came with axe and after restraining the deceased, appellant assaulted the deceased by axe over his temporal region, Giddu also assaulted the deceased as a result of head injury caused by the appellant deceased fell down and died. He informed the incident to Nanhiram, appellant Qed away from the spot. He went to the Police Station and lodged the report. PW4 I>uniram has deposed in his evidence that appellant assaulted the deceased by axe repeatedly. In his cross examination he has stated after hearmg the sound he eame out from his house and he has seen the incident, according to the autopsy report only one injury was'found over the head of the deceased. The evidence of PW4 Puniram reveal that he has 'fgtn*'1^ f^ 13. exaggerated his version relating to more than one \, injury caused by the appellant. Defence has cross examined PW1 Guddu Urav at length in Para-6 of his cross examination Jie has admitted that on the date of incident son of appellant was in his house and he was worklng in his house, ,he has also admitted that they .-.I. took their meal and also drink intoxicated liquid (Handia} he has denied the suggestion that appellant came to his house he has speciB.cally stated in Para-9 that while he was going with the deceased towards the house of the deceased the appellant met in a midway and caused injury to the deceased. The fact that appellant has seen the incident is unchallenged in his evidence, he has not admitted any enmity with the appellant he is not interested witness. His evidence inspire confidence. His evidence has been corroborated by PW2 Nanhiram and PW3 Hiraram. After appreciating the evidence available on record leamed Additional Sessions Judge has convicted and sentenced the appellant aforementioned. The conviction is based on evidence of eye witnesses and is sustainable under the law. Court below has awarded the minimum sentence prescribed under fhe law. (aa- ;3 '^ /~f 14. On close scrutiny of the evidence, we do not find any illegality or infirmity in the judgment impugned. Appeal is devoid of merits. Consequently, fhe criminal appeal is liable to be dismissed and it is hereby dismissed. Sd/- T.P.Sharma Judge < \ <k Sd/- R.L. Jhanwar Jud'ge