..//"- "\ 1+. ^^& •(p i';;;::-ii=a^ •i's'iSsf^j^^v-S: ^•.\^.^.i^:^ ^' '.•\/ HIGH COURT OF CHHATTISGARH AT BILASPUR \, DIVISION BENCH CORAM: HON'BLE MR. T.P. SHARMA SE HON'BLB MR. R. L. JHANWAR. JJ. APPELLANT (IN JAJL) CR.A. No. 180 OF 2003 Raj Lal, S/o Budhu Ram, Gond, • ,; Aged about 40 years, R/o Gram Police Station VERSUS Tiimrikahi, Durgiikondal, (C.G.). Distfc Kanker R1ESPONDENT State of Chhattisgarh, Through P.S. Diirgukondal, MEMORANDUM OF C»IMINAI. KFPEKL VJs 374 (21 CRIMINAL PROGEDURE CODE. Present:- Shri Hemant Solapurkar, Advocate for fhe appellant. Shri RajendraTripafhi, P.L. forthe State/respondent. ORAL-JDDGEMENT (Passedon 21/01/2010) The following iudgment of the Court was uassed bv T.P. Sharma, J:- 1. Challenge in fhis appeal is to the judgment of conviction and order of sentence dated 31/10/02 passed by Ftrst Additional Sessions Judge, Kanker in Sessions Trial No. 124/2002 whereby and whereunder after holduig fhe appellant gmlty for the commission of the ofience of homicidal death amounting to murder of Sunder convicted the appeUant under Section 302 of the Indian Penal Code and sentenced imprisonment for Itfe and fine "••^ v ' ti. lr. 'S-i i'^&^^ • j]^ J' ;f ..-:.«•?' /> 4-'r \ - 7- 'St>:;:'-::;is"":S?.?i^.M^& 4. of Rs. 500/- in default of payment of fine further rigorous unprisonment for 6 months. Judgment is impugned on fhe groiind that without any credible and cUnctting evidence court below has convlcted and sentenced fhe appellant aforementioned. Case of the prosecu^ion in brief is on fateful day of 28/11/2001 at about 10 P.M. deceased Simder was sleeping in Lari along wifh PW10 Ram Prasad. AppeUant came with axe and assaiilted the Sunder by axe and caused hls deafh. PW10 Ram Prasad immediately informed his master Gopiram the incident and lodged the First Lnformation Report on 19/11/01 vide Ex. P-8. Marg was also recorded. Investigating Officer proceeded for spot after summoiiing fhe witnesses Vide Ex. P-1, inquest over the dead body of Sunder was prepared Vide Ex. P-12. Blood stain and plaln soil were recovered from (he spot vide Ex. P-2. Spot map was prepared vlde Ex. P-4. Dead body was sent for autopsy to Community Healfh Center, Bhanupratappur. Autopsy was conducted by PW7 Dr. A.R. Qota and found following tnjuries:- (1) incised wound of 2.75 x 1.5 x 1.5" over right side ofthe face, rightjaw was broken. (2) incised woiind over neck of 2.25 x 1.5 x 1.5". (3) incised wound over necK of 2 x .25 X skin deep and trachea and bronchitis was found cut. Deafh was due to asph^'xia as a s. BSl: V" ^iSal^i '"S3S "Al. -..-:v;' !•-. ^""'••s' ,^ ^' ^ ^ A/ / ^ Et'ISBlm'SS'Katws. result of mjury over neck and deafh was hoinicidal in nature. 5. Accused was -taken into custody he made discloser statement of axe vide Ex. P-6, blood stained axe was recovered at fhe instance of accused vide Ex. P-5. Axe was examined ty PW7 pr. A.R. Gotavide Ex. P-7. Cloths ofthe deceased was seizedsafter autopsy vide Ex. P-11. Seized articles were sent for chemical examination vide Ex. P-13, presence of blood over axe seized from the accused was confirmed vide Ex. P-15. Statement offhe witnesses were recorded under Section 313 of the Code of Criminal Procediire, 1973 (m short the Code'). After completion of the investigation charge sheet was ffled before fhe Judicial Magistorate, Bhanupratappur who in tum committed fhe case to the Court of Sessions. Leamed Additional Sessions Judge, received the case on transfer for trial. 6. In order to prove the guUt of the appellant prosecution examined as well as 10 witnesses. Accused was examined under Section 313 of the Code where he denied the ctrcumstances appearing against him, innocency and false unplication is claimed. 7. After affording an opportunily of heanng to the parties leamed First Additional Sessions Judge convicted and sentence^ fhe appeUant aforementioned. /}\< 8. Leamed counsel for the parties are heard. Judgment unpugned and record of Court below perused. 9. Leamed counsel for the appellant submits fhat conviction is based on sole testimony of PW10 Ram Prasad who was present at the time of tncldent at Lari (smafl. temporary hut) fhe place insi4e the field_at night but he has not .J; intercepted or inteCTerte. or tried to caught hold or chased the accused shows that the sole eye witness PW10 Ram Prasad has not seen the incident and has falsety unpllcated the appeUant to safe himself from any prosecution. 10. On fhe other hand, leamed coiinsel for fhe State/respondent opposed the appeal and submits fhat evidence of FW 10 Ram Prasad who has seen the incident and fhe evidence of PW4 Ratiram whoia appellant has made extra judicial confession are suffidLent for drawing the inference that appellant has caused the death of deceased. 11. In order to appreciate the argument advanced on behalf of the parties we are examined fhe evidence adduced on behalf of the prosecution. In the present case homicidal death as a antimortem fatal injmy of the Sunder has not been substantially disputed by the appellant otherwise also established tsy the evidence of FW7 Dr. A.R. Gota and autopsy report Ex. P-13 which reveals that the deceased ,<3 I!''6!aBSt> ^/'^''"'%.~^h E ,„.'°. 1 - nj ::,, !ia.>..'''«jf -5- ^. ^^^^^^^ss ."lili''^^til^g^^^ Snnder died as a result of fatal injury found over fhe face and neck and death was homicidal in nature. 12. As regard fhe compllcity of the appellant in crime in question is concemed the conviction of fhe appellant is based on dicect evidence of PW10 Ram Prasad and extra judicial confession m&de by fhe appellant to PW4 Ratu-am. ..(; PW 10 Ram Prasad has deposed in his evidence that at the time of incident at night he and deceased Sunder were sleeping separately inside Lari (small temporary hut) constructed over the field and fhere was biinring charcoal. Appellant came wifh axe and assaulted the Sunder and fled away from fhe Spot. He immediately went to the house of Gopiram and narrated the incident to him. They came back to fhe spot where fhe dead body of the deceased Sunder was lying than he went to the Police Station and lodged the First Information Report vide Ex. P-8. Defence has cross examined fhis witness at lengfh. In Para-4 of his cross examination, he has admitted fhat fhere was dark night but he has seen the incident in fhe light of Angar buming charcoal, he has denled the su^estion fhat he htmself assaulted fhe deceased. PW4 Ratiram has deposed in his evidence fhat fhere was some previous quarrel between accused and deceased and accused was under apprehension that deceased may assault/kUl him and accused made extra judicial confession to him that to safe .^€3e^ ^y's^ ts &-.,-: ss 85 » ^'l^^ ^ -^ ^•f^SSS^SSsa, himsetf he has kUled fhe Simder. In his cross examination Para-2 he has admitted fhat on the date of incident accused was sleeping in his Lari Umend and Dileep took the accused to his house and told them that accused has kUled the Sunder. Defence has cross examined this witness and PW 1^0 Ram Rrasad but has not been able to ,,). Ulicit anythlng in.fhgir cross examination to discredit fhelr testunony or to dispute the fact that PW10 Ram Prasad has not seen fhe ineident and appellant has not made extrajudicial confession before PW4 Rattram, the evidence of aforesaid witnesses mspire confidence trustworfhy and suf&cient for drawmg inference that appellant is a person who has caused the fatal injiiiy to the dece^ed and deceased died as a result of such fatal injury. 13. As regard the question of motive is concemed fhe motive is only aid in criminality and in case of dlrect evldence it loses its unportance. Motive can be inferred on the basis of the nature of injury, part of the body mjured, weapon used and fhe manner of mfllcting the injuiy. The aforesaid facts and drcumstances are sufiicient for drawtng inference evidence in present case reveals that deceased was sleeptng in Lari for away from fhe vfflage or the place where the appellant was sleepiag. Appellaiit went with axe to the place of incident at night and caused fatal injiuy to the deceased while he was sleeping which ^ffSi:^.^ -"•\'^. ^ 'V / -7 are snfiicient for drawing an inference fhat appeUant has caused the fatal inji.uy to the deceased knowing that by caustng such injiiry he wUl cause fhe death of fhe deceased and has inflected injuries with intent to cause the death ofthe deceased. 14. After appreciatlg.g fhe evidence avaUable on record leamed ..(. Additional Sessions Judge has convicted and sentenced the appeUant aforementioned. The Conviction of the appeUant is based on creditable, clinching and reliable evidence sustainable under the law. Court below has awarded minimum sentence prescribed under the law. 15. On close scrutiny of tfae evidence, we do not find any scope in the present appeal. ConsequenUy, fhe criminal appeal is devoid of any merits is liable to be dismissed and it is hereby dismissed. Sd./- TP.Shanna Judge ''•./ Sd/- R.L. Jhanwar Judge