t^'p' :^ HIGH COURT OF CHHATTISGARH, BILASPUR APPELLANT: (In Jail) RESPONDENT: Criminal Appeal No.255 of 2006 Puru alias Kashi Ram, S/o Keju Ram Dhruv, Aged about 43 years, R/o Maldi, Police Station Bhatapra Rural, District Raipur Versus State of Chhattisgarh, Through District Magistrate, Raipur (C.G.) {Criminal appeal under Section 374 ofthe Code of Criminal Procedure, 1973} Present: Mr. Abhay Tiwari, counsel for the appellant. Mr. J.A. Lohani, Panel Lawyerforthe State/respondent. Division Bench: - Hon'ble Mr. T.P. Sharma and Hon'ble Mr. R.N. Chandrakar. JJ ORAL JUDGIVIENT (14-6-2011) T.P. Sharma. J: - 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 17-2-2006 passed by the Additional Sessions Judge, Bhatapara inSessions Trial No.291/2005, whereby & whereunder learned Additional Sessions Judge after holding the appellant guilty for eommission of culpable homicide amounting to murder of Sukalhin Bai, convicted the appellant under Section 302 of the IPC and sentenced him to undergo imprisonment for life & pay fine of Rs.500/-, in default of payment of fine to further undergo Sl for two months. 2. Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellant, and thereby committed illegality. 3. As per case of the prosecution, on 22-6-2005 at about 5 p.m. while Sukalhin Bai (since deceased) was collecting cow dung in the field, the appellant reached there, he was holding axe & stick and on the doubt of witehcraft being practiced by Sukalhin Bai, he assaulted her by axe over her neck and caused two fatal injuries. Sukalhin Bai fell down and the /T^ 1 t fs..^'^ "'*^y°^f': "^v^.SSSf-i-" fa\ (" '-e appellant fled away from the spot. Relatives of the deceased made search for the deceased on the same day, but on second day at about 5.30 a.m. they found the deceased lying in the field in injured condition, she was in conscious condition, they took her to the village and she made dying declaration that the appellant has caused fatal injuries on her person. Surendra Kumar (PW-1) went to the police station and lodged FIR vide Ex.P-1. The injured/since deceased was admitted in Jeevanmal Hospital, Bhatapara for treatment and during the course of treatment her dying declaration was recorded by Executive Magistrate Mithilesh Kumar Donde (PW-7) vide Ex.P-7. She was examined by Dr. S.K. Jivanmall (PW-10) vide Ex.P-17 and two fatal injuries were found over her neck. The deceased died during the course of investigation. Merg was intimated vide Ex.P-18. The investigating Officer left for the scene of occurrence and after summoning the witnesses vide Ex.P-2, prepared inquest over the dead body of the deceased vide Ex. P-3. Bloodstained clothes of the deceased were seized vide Ex. P-5. Dead body was sent for autopsy to Community Health Centre, Bhatapara vide Ex.P-11. Dr. Rajendra Maheshwari (PW-12) conducted autopsy vide Ex.P-28A and found following injuries: - (1) Injury over left parietal area of 7 c.m. x bone deep. (2) Incised, wound over left side of face comprising fracture of lower jaw and premolar to right inside teeth. (3) Incised wound of 4 c.m. x bone deep over left side of face. (4) Incised wound over right side of neck of 6 c.m. x deep cut injury. (5) Fracture ofjaw bone and mandible. (6) Compound fracture of radius of left forearm effecting the wrist joint. Cause of death was shock and death was homicidal in nature. During the course of investigation, the accused was taken into custody, he made discloser statement of stick vide Ex. P-8 and same was recovered at his instance vide Ex.P-9. Bloodstained clothes of the appellant were seized vide Ex.P-10. Bloodstained stained and plain soil were recovered from the spot vide Ex.P-11. Search relating to axe of the accused was made vide Ex.P-12 and same was recovered vide Ex.P-13. Seized articles were sent for chemical examination vide Ex.P-23. 4. Statements of the witnesses were recorded under Section 161 of the CrPC. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Baloda Bazaar who - -\\\ -^T committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge received the case on transfer for trial. 5. In order to prove the guilt of the accused/appellant, the prosecution has examined as many as twelve witnesses.. The accused/appellant was examined under Section 313 of the CrPC in which he denied the circumstances appearing against him, pleaded innocence and false implication in the crime in question. The appellant has also taken the defence of alibi that at the time of incident he was at Raipur and was not near the place of incident. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge, convicted and sentenced the appellant as aforementioned. 7. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 8. Learned counsel for the appellant submits that the prosecution has not proved the case beyond the shadow of doubt. Conviction of the appellant is based on dying declaration of the deceased which is not sufficient for conviction. Learned counsel further submits that even otherwise, as per case of the prosecution, after causing injuries, the appellant fled away from the spot and at the time of such injuries, injured Sukalhin Bai was alive, even she was alive unattended till next day and she died at about 4 p.m. during the course of treatment. This shows that the appellant had left the injured when she was alive, his intention was not to cause death of the deceased, but as a result of injuries and in absence of immediate medical aid, the deceased died. Therefore, if the evidence of the prosecution is considered as gospel truth, even then, the act of the appellant does not travel beyond the scope of Section 304 Part-llofthelPC. 9. On the other hand, learned State counsel opposes the appeal and submits that the appellant has caused multiple fatal injuries including fracture of the deceased, when the deceased was helpless and alone and when she fell down and become unconscious, the appellant fled away from the spot. This shows the intention of the appellant that he has caused sufficient injuries for causing her death. After appreciating the evidence available on record, learned Additional Sessions Judge has rightly convicted & sentenced the appellant. •\^ "°\ '/ 10.1n order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf ofthe prosecution. 11.1n the present case, homicidal death of deceased Sukalhin Bai as a result of fatal injuries found over her body has not been substantially disputed on behalf of the appellant, even otherwise, it is established by evidence of Dr. Rajendra Maheshwari (PW-12) and autopsy report Ex.P- 28A that the injuries found over neck and other vital parts of the body of deceased Sukalhin Bai are sufficient for causing death and death was homicidal in nature. 12.As regards complicity ofthe appellant in the crime in question, conviction is substantially based on the dying declaration made by the deceased before Hemrai (PW-2), Devcharan (PW-3), Shanta Bai (PW-6) & Executive Magistrate Mithilesh Kumar Donde (PW-7). Executive Magistrate Mithilesh Kumar Donde (PW-7) has specifically deposed in his evidence that he has recorded the statement of Sukalhin Bai in the hospital vide Ex.P-7, although he has not obtained written certificate from the doctor, but at the time of recording her statement, she was in fit condition to state. The factum of her fit condition is well corroborated by evidence of Hemrai (PW-2), Devcharan (PW-3) & Shanta Bai (PW-6). As per evidence of Hemrai (PW-2), Devcharan (PW-3) & Shanta Bai (PW-6), on the fateful day, Sukalhin Bai (since deceased) had gone for collecting cow dung but she did not come back to her house, they searched for her, but they did not find her. On second day, at about 5.30 a.m. they found her in the field where she was lying she was in conscious state and she made statement before them that the appellant has caused the aforesaid injuries to her. Defence has cross-examined them at length, but it has not been able to elicit anything in their cross- examination to discredit their testimony especially relating to the dying declaration. Evidence of these witnesses is well corroborated by evidence of Executive Magistrate Mithilesh Kumar Donde (PW-7). 13.Dying declaration is also a kind ofevidence and ifsame is proved, then it would be sufficient for drawing definite conclusion against the accused. While dealing with the question of evidentiary value of dying declaration, the Supreme Court in the matter of State of U.P. v. Ram Sagar Yadav (AIR 1985 SC 416) has held that if the court is satisfied that the dying •y ^^ declaration is true and voluntary it can base conviction on it, without corroboration. 14.1n the present case, evidence of Hemrai (PW-2), Devcharan (PW-3), Shanta Bai (PW-6) & Executive Magistrate MithileshKumar Donde (PW- 7) relating to dying declaration made by the deceased before them inspires confidence, it is trustworthy and same can be relied upon. 15.As regards the question of motive, motive only aids in criminality and in case of direct evidence it loses its importance. Motive can be inferred on the basis of the weapon used, part of the body effected, nature of injury and other similar circumstances. 16.1n the present case, as per case of the prosecution, deceased Sukalhin Bai was collecting cow dung in the field, she was alone, the appellant went in the field and condemned her on account of her practicing witchcraft and thereafter, he caused fatal injuries over her head, hand & neck resulting in multiple fractures, by axe and stick. Though the deceased was alive till next day morning, she was unattended and thereafter, medical aid was provided to her and she died on next day. This shows that she was alive on thespot at the time of incident. Injuries found over the body of the deceased were sufficient for causing her death. As per autopsy report, there were five grievous injuries found over head, neck and hand of the deceased. After the deceased fell down, the appellant fled away from the spot. These circumstances clearly show the intention of the appellant that with intent to cause her death the appellant has caused the aforesaid five fatal injuries on her person. When the deceased was alone and was not in a position to get help from other persons, the appellant left her and fled away. 17-After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellant in the aforesaid manner. 18.0n close scrutiny of evidence, we do not find any illegality or infirmity in the judgment impugned requiring any interference in exercise of appellatejurisdiction. Consequently, the appeal is dismissed. Soma Sd/- T.P. Sharma Judge Sd/- R.N.Chandrakar Judge